Koelling v. Rutz

Citations

• 108 Cal. 664
• 41 P. 781
• 1895 Cal. LEXIS 900

Syllabus

<p>Appeal—Failure to File Transcript—Dismissal—Damages por Delay. Where the respondent, upon a motion to dismiss an appeal for failure of the appellant to file the transcript within the time prescribed by the rules of the court, also asks to be allowed damages upon the ground that the appeal was not taken in good faith, but was taken for the purpose of hindering and delaying the respondent in the collection of the judgment, and files an affidavit in support of the latter part of the motion showing that the appeal was taken and the execution of the judgment stayed for mere delay, and in order to induce the respondent to accept a less sum than the amount of the judgment, which he refused to do, if the statements in the affidavit are not controverted by the appellant, and are corroborated by his failure to file the transcript, he must be considered as admitting them, and the respondent is entitled to damages for delay upon the dismissal of the appeal.</p>