This is a motion to dismiss the appeal on the ground that appellant's opening brief is not in the form required by the rules of the Supreme Court and of the District Courts of Appeal.
A motion was formerly made on the same ground and this court, in disposing of it, ordered appellant's opening brief stricken from the files and granted him leave to file another in lieu thereof (Barnes v. Cocke, 99 Cal.App. 700, 279 P. 190). Appellant filed his opening brief pursuant thereto, which is the subject of the attack on this second motion to dismiss.
[1] Respondent, in his notice of motion to dismiss the appeal, uses the following language: "that said second and further opening brief does not comply with Rule VIII of this court, in that it fails to present `any point separately, under an appropriate heading, showing the nature of the question to be presented'; that the appellant's opening brief last filed contains but one and a single heading, to-wit: Statement of Case." A careful examination of appellant's opening brief discloses that the opposite of this statement is true, i.e., appellant's brief contains a "statement of the case," with its appropriate heading in black type; thereafter follows appellant's argument, presenting the point that the judgment is contrary to the findings; this point is properly set apart from the other portions of the brief and it is preceded by an appropriate heading in black type "showing the nature of the question to be presented." It is true that but one point is raised in the brief but this is immaterial in view of the fact that it is properly set forth.
The other contentions made by respondent deal with the merits of the case, which fact precludes us from any discussion thereof.
Motion denied.
Works, P.J., and Craig, J., concurred. *Page 172