Greer v. Freitas

ADAMS, P. J.

Plaintiffs brought this action to recover general and special damages alleged by them to have resulted from a collision between an automobile driven by plaintiff William A. Greer, with whom his daughter, Anna Greer, was riding as a guest, and one driven by defendant George H. Freitas but owned by M. Elizabeth Freitas, his wife. The jury returned a verdict in favor of defendants and against the plaintiffs. Plaintiffs moved for a new trial and the motion was denied as to William A. Greer but granted as to Anna Greer. The order granting such new trial reads: ‘ ‘ The motion for New Trial in the above entitled ease having been heretofore submitted to the Court on the

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21st day of Jan. 1943, and after due consideration thereof, it is ordered that the motion for new trial by the plaintiff, William A. Greer, be and the same is hereby denied; that the motion for new trial by the plaintiff, Anna Greer, be and the same is hereby granted.”

Defendants appealed from the foregoing order and within the time prescribed by law served and filed their opening brief. No brief has been filed by respondent Anna Greer nor has she suggested any theory upon which the order may be sustained. The order itself does not show the grounds upon which it was granted. This court is, therefore, put to the task, if it will undertake it, of searching through the record and speculating as to what alleged errors relied upon by plaintiffs as grounds for a new trial induced the trial court to grant a new trial as to Anna Greer, and to her alone. Appellate courts are not required to assume that burden. While there are other cases on the subject,

Zeigler

v.

Bonnell,

52 Cal. App.2d 217, 218 [126 P.2d 118], most emphatically states the rules as follows:

“Although given ample opportunity to do so, respondent has filed no brief on this appeal, nor has he or his counsel suggested any theory upon which the judgment may be sustained. Under such circumstances, we are entitled to accept the facts as stated in appellant’s brief (Rule V, § 1, of the Rules of the Supreme Court and District Courts of Appeal;