Barnes

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 Pac. 190 ). Appellant filed his opening brief pursuant thereto, which is the subject of the attack on this second motion to dismiss.

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;…