Opinion
Appeal from Third District Court, County of Alameda.
COUNSEL:
Charles E. Pickett, for Appellant.
Delos Lake, Wilson & Wilson, for Respondents.
JUDGES: In bank, Thornton, J. Morrison, C. J., Ross, J., McKee, J., Myrick, J., and Sharpstein, J., concurred. Mr. Justice McKinstry being disqualified, did not participate in the decision of this case.
OPINION
THORNTON, Judge
A motion is made herein to dismiss this appeal for a failure to file the transcript within the time prescribed under Rules 3 and 4 of this Court, on the certificate of the Clerk of the Court a quo. The certificate is in accordance with the requirements of Rule 4. Notice of this motion was given on the 16th day of May, 1879, and the transcript was filed on the 24th of December following.
The respondent is entitled to a dismissal of the appeal, unless there is some circumstance which should induce the Court to waive the rule. Rules of Court are but a means to accomplish the ends of justice, " and it is always in the power of the court to suspend its own rules or to except a particular case from their operation, whenever the purposes of justice require it." (United States v. Breitling, 20 How. S.E. 252-254; People v. Williams, 32 Cal. 280-288.)
Four of the judges of the late Supreme Court were defendants in this action, and respondents here. They were disqualified to hear and decide the cause. Nor was there a court competent for that purpose until the fifth of January, 1880. The transcript was filed before there was a court competent to hear it. And under these circumstances we think the rules of this Court, which would, if construed according to their terms, deprive the appellant of an opportunity to present his cause to a court competent to hear and decide it, should be suspended.
The motion must therefore be denied.