Baldwin v. Baldwin

WARD, J.

This is an appeal from an order appointing a receiver. Plaintiff in his complaint sought judgment for money had and received and on an account stated. Defendant answered and cross-complained, alleging a partnership in the business of “Floyd Baldwin, Painting and Decorating.” She demanded an accounting and filed a motion for the appointment of a receiver. Plaintiff answered defendant’s cross-complaint. Affidavits were filed by the parties in opposition to and in support of the application for the appointment of a receiver respectively. The matter was submitted upon the pleadings, the affidavits and the testimony of the parties. The trial court entered an order appointing a receiver, and it is from this order that the plaintiff and cross-defendant has taken this appeal.

The clerk’s and the reporter’s transcripts having been filed, followed in due time by appellant’s brief, and the respondent having presented no answering brief, the matter has accordingly been submitted under rule 17 (b) of the Rules on Appeal. (22 Cal.2d 14.)

Where a respondent has filed no brief within the time prescribed, and no sufficient showing of excuse is made, the appeal may be submitted on the seeord under rule 17(b)

(Zeigler

v.

Bonnell,

52 Cal.App.2d 217 [126 P.2d 118];

Marchese

v.

Marchese,

61 Cal.App.2d 307 [142 P.2d 936]), and the statement of facts in appellant’s brief accepted as true. The submission for decision upon appellant’s brief is discretionary.

(Ramacciotti

v.

Galiano,

59 Cal.App.2d 8 [137 P.2d 722].) The word “may” is used in a permissive sense. (Rule 40(d).)-The general rule in many jurisdictions is that on the failure of respondent to file a brief on appeal, the court may reverse without considering the merits, or may consider the merits and affirm or reverse the judgment. (3 Am.Jur., § 781, p. 338 ; 4 C.J.S., pp. 1929-1930.) The rule that should be followed is that of examining the brief of appellant to see whether the error or errors complained of would probably