Brunscher v. Reagh

PETERS, P. J.

Plaintiff, Raymond Brunscher, brought this action against Charles Reagh to partition certain property claimed by plaintiff to be jointly owned by plaintiff and Reagh, and for an accounting. Thelma Brunscher answered, claiming that she now owns the interest in the property formerly owned by Reagh, and also alleging that if an accounting be granted she be given credit for certain improvements to the property made by her, and for certain other specified items. Pursuant to court order the property was sold and the money received therefrom impounded. An accounting was then had. After all obligations against the property were paid the trial court found that there remained $2,750 to be distributed and that Raymond Brunscher should receive $838.79 and Thelma Brunscher should receive $1,911.21. Thelma Brunscher appeals, challenging the accounting. Reagh has not appealed. Raymond Brunscher has not filed a respondent’s brief and his counsel has informed the court that Raymond does not desire to do so.

Where the respondent refuses to file a reply brief, under rule 17(b) of the Rules on Appeal “the court may accept as true the statement of facts in the appellant’s opening brief and, unless the appellant requests oral argument, may submit the case for decision on the record and on the appellant’s opening brief.” In

Postin

v. Griggs, 66 Cal.App.2d 147, 148 [151 P.2d 887], it was stated: “Under the provisions of that rule [17(b)] we are entitled to accept as true the statement of facts in the opening brief. We are under no duty to seek out points of law in support of the judgment, are entitled to assume that respondent has abandoned any attempt to support the judgment, and that the point made by appellant for reversal is meritorious.”

In the instant case, it is apparent that the judgment appealed from must be reversed. The record shows that in 1933 Ray and Thelma Brunscher were husband and wife. They acquired the real property in question in that year. Title was taken as joint tenants, but they treated it as community property. A deed of trust was put on the property and payments

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of $27.80 to $30.50 per month were made on it. The parties separated on June 10, 1946, and Raymond took possession of the property and lived there with their oldest child. There were two younger children who remained with Thelma. Thelma and her children spent some time with the Reagh family and then went to Nevada and secured a default divorce from Raymond on January 14, 1947. On February 21, 1947, Thelma deeded her interest in the property to Reagh as security for attorney’s fees and money advanced by him. Reagh, by deed dated July 31, 1950, but not recorded until January 28, 1955, deeded the interest involved back to Thelma.