McCosker v. McCosker

SCHOTTKY, J.

Respondent parents brought an action against their son and his wife to have a resulting trust declared in certain real and personal property and for an accounting of the profits derived from said property. The trial court found that the parents owned an undivided one-half interest in the real and personal property, ordered that an account be taken by a referee, and upon the settlement of the referee’s final report, gave judgment accordingly. The son and his wife have appealed from said judgment, their appeal being filed by different counsel than the one who represented them in the trial court. Appellants have filed an opening brief of less than two full pages, have filed no closing brief, and at the time of the oral argument appellants’ counsel, although present, waived argument.

One of the points raised is that there is insufficient evidence to support the finding of a resulting trust, and the sole statement of appellants on this point is as follows: “Where a father and son are dealing and' one transfers property to the other, there is a presumption that there was a gift and this presumption must be overcome by the evidence. This burden rested upon the plaintiff and he failed to fulfill the obligation of overcoming the presumption.”

Although the reporter’s transcript consists of 340 pages,

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appellants make no reference whatever to said testimony. The rule is well established that a reviewing court must presume that the record contains evidence to support every finding of fact, and an appellant who contends that some particular finding is not supported is required to set forth in his brief a summary of the material evidence upon that issue. Unless this is done, the error assigned is deemed to be waived.

(Kruckow

v.

Lesser,

111 Cal.App.2d 198, 200 [244 P.2d 19].) It is incumbent upon appellants to state fully, with transcript references, the evidence which is claimed to be insufficient to support the findings. The reviewing court is not called upon to make an independent search of the record where this rule is ignored.