Peebler

The matters before us arise upon an appeal from a judgment granting a permanent injunction. On May 26, 1944, the clerk’s and reporter’s transcripts were filed in the reviewing court. On July 6, forty-one days later, respondents noticed a motion to be heard September 27, to strike the reporter’s transcript on the ground that it was not prepared and certified within the time or in the manner prescribed by law. Included in the same document and designated to be heard at the same time, was a motion to dismiss the appeal for failure of the appellants to file their opening brief.

The time for the filing of an opening brief is prescribed in rule 16 (a) of the Rules on Appeal, and an opening brief not filed within the thirty-day period there prescribed, or within any valid extension allowed thereunder, is in default. Therefore, in the absence of any valid extension of time, appellants’ opening brief was due thirty days after filing of the record, or on June 25, 1944. When respondents on July 6 filed their motion to dismiss, appellants were in default for a period of only eleven days. Rule 17(a) provides, in part, that “If the appellant’s opening brief is not filed within the time…

I dissent from that part of the majority opinion dealing with the granting of relief from appellant’s conceded default in the filing of his opening brief. It fails to meet the basic issue in this proceeding, for it considers the problem as if the default took place in the course of an appeal pending in this court. If this were the case, and appellant’s request for relief from default were addressed to us, it would be entirely appropriate to consider his excuses, and either grant or deny relief in our own discretion. The appeal was pending, however, in the District Court of Appeal, Second Appellate District, Division Two, for determination, and the record and briefs had to be filed in that court. The delays and default took place there; the motion to dismiss the appeal was made in that court, argued there, and decided, after submission, by a written opinion. A petition for hearing was thereafter filed and granted by this court.

The Rules on Appeal recognize, of course, that the “reviewing court,” which has the power to grant or deny relief from default, is the court in which the appeal is pending. (Rule 40(b).) Hence, the power to relieve from default in the instant case…