Opinion
Docket No. 1390.
October 9, 1935.
MOTION to dismiss an appeal from a judgment of the Superior Court of Fresno County. Arthur Allyn, Judge. Motion denied.
The facts are stated in the opinion of the court.
J. Hampton Hoge and Chester O. Hansen for Appellant.
Claude Minard and Ray W. Hays for Respondent.
The respondent has moved to dismiss this appeal or affirm the judgment on the grounds that the appeal was taken for delay only and that the questions presented are so unsubstantial as not to need further argument.
[1] In the opening brief it is urged that the giving and refusal of certain instructions was erroneous in view of the evidence which had been presented. It is at once apparent that it will be necessary to examine the entire record, including the evidence. The opening brief raises at least one substantial question in the decision of which the court should have the assistance of the respondent. This is in effect conceded by the respondent, who filed a brief some months before this motion was made, and who argues, in support of the motion, that any error which may appear is not reversible under section 4 1/2 of article VI of the Constitution.
We have heretofore held that a motion of this character should not be granted where it appears that the case cannot be decided without going over the entire record ( Brown v. Gow, 126 Cal.App. 113 [ 14 P.2d 322]), and that it should not be used merely for the purpose of advancing the cause on the calendar ( Lennon v. Woodbury, 1 Cal.App. (2d) 381 [ 36 P.2d 415]).
The motion is denied.
Marks, J., and Jennings, J., concurred.