TROY LAUNDRY MACHINERY COMPANY, LIMITED. Respondent, v. DRIVERS' INDEPENDENT LAUNDRY COMPANY, Appellant

[Civ. No. 776. Second Appellate District. March 31, 1910.] TROY LAUNDRY MACHINERY COMPANY, LIMITED. Respondent, v. DRIVERS’ INDEPENDENT LAUNDRY COMPANY, Appellant. Appeal—Motion to Dismiss—Time fob Filing Points and Authorities—Death of Respondent’s Attorney—Proceedings Suspended —Motion Denied.—Under section 286 of the Code of Civil Procedure, upon the death of the attorney for respondent, all proceedings against respondent on behalf of appellant were suspended until such time as respondent voluntarily, or in response to proceedings instituted by appellant, appointed another attorney, or appeared personally; and where a newly appointed attorney for respondent at once moved to dismiss the appeal for failure of appellant to file its points and authorities in time, and it appeared that at the time of such death appellant had unexpired time therefor, they were properly filed within such time after appointment of the new attorney, and when filed within proper time thereafter, the motion to dismiss the appeal must be denied. MOTION to dismiss an appeal from a judgment of the Superior Court of Los Angeles County. Charles Monroe, Judge. The facts are stated in the opinion of the court. D. Z. Gardiner, and Millsap & Sparks, for Appellant. Horace S. Wilson, and Constan Jensen, for Respondent. [MAJORITY — SHAW, J.] SHAW, J. Motion to dismiss appeal from judgment upon the ground that appellant failed to file its points and authorities within the time prescribed by the rules of this -court. (Subd. 4, rule II, [78 Pac. vii].) The transcript was filed December 6, 1909, and the period of thirty days allowed to appellant for filing its points and authorities expired on January 5, 1910. The points and authorities, however, were not filed until February 23, 1910. The reason for the delay, as appears from appellant’s affidavit filed in opposition to the motion, was that respondent’s attorney died on December 30, 1909, at which time appellant had six days within which to file its points and authorities. Upon the death of an attorney all further proceedings against the party for whom he was acting as attorney are stayed until such time (unless he of his own motion appoint another attorney) as the adverse party shall by written notice require him. to appoint another attorney or appear in person. (Code Civ. Proc., see. 286.) By virtue of the provisions of this section all proceedings in the prosecution of the appeal were suspended from the date when respondent’s attorney died until such time- as respondent voluntarily, or in response to proceedings instituted by the adverse party, as provided by said section 286, appointed another attorney or appeared personally. On February 16, 1910, respondent selected another attorney, notice of the appointment of whom was on the same day, together with a motion to dismiss the appeal, served upon appellant. This action on the part of respondent in appointing an attorney rendered it unnecessary for appellant to give the notice prescribed in section 286, supra, (Nicol v. San Francisco, 130 Cal. 288, [62 Pac. 513].) Appellant, therefore, had six days remaining from and after February 16, 1910, within which to file its points and authorities. This period expired on February 22d, which, being a holiday (Code Civ. Proc., sec. 10), should be excluded, in the computation (Code Civ. Proc., :see. 12), thus extending the time to February 23, 1910, on which date the points and authorities were filed. Under the circumstances of this case they were filed in time. The motion to dismiss is denied. Alien, P. J., and Taggart, J., concurred.