Dailey

The trial court sustained a demurrer to plaintiff’s first amended complaint. Plaintiff failed to further amend within the time prescribed, which resulted in a judgment of dismissal from which this appeal is prosecuted. At the hearing before this court on the May calendar the death of the defendant and respondent was suggested by his attorney who appeared in the trial court. No reply brief or other appearance having been made in this court. No substitution of the parties has been made in this court.

It was the contention of the respondent at the hearing in this court that the cause of action does not survive his death. The court ordered this matter submitted upon briefs, ten, ten, and five, and directed the appellant, within that time, to take such steps as are prescribed by law to effectuate a substitution of parties. Respondent filed his opening brief as directed by the court but no action has been taken by the appellant. No brief has been filed and no move has been made to substitute a party in the place and stead of the deceased respondent. Under such circumstances, two months having elapsed, it is our judgment that the appellant has abandoned his appeal. An inspection of the…