Postin v. Griggs

PETERS, P. J.

Plaintiff brought this action in the city and county of San Francisco. Defendant moved for a change of venue to Los Angeles County, his place of residence. From the order denying this motion, defendant appeals.

[148]

Although given ample opportunity to do so, respondent has not seen fit tó file a brief on this appeal. As a result, the cause has been submitted on appellant’s opening brief pursuant to rule 17 (b) of the Rules on Appeal. Under the provisions of that rule 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.

(Zeigler v. Bonnell,

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

Duisenberg-Wichman & Co.

v.

Johnson,

123 Cal.App. 125 [10 P.2d 1010] ;

Bendlage

v.

Kohlsaat,

54 Cal.App.2d 136 [128 P.2d 691];

Ramacciotti

v.

Galiano,

59 Cal.App.2d 8 [137 P.2d 722].)

The complaint is entitled “Complaint for Rescission and for an Accounting.” It alleges that in San Francisco in November, 1941, the litigants, and certain other parties, entered into an agreement creating a limited mining partnership, by the terms of which plaintiff became a general partner and the owner of a one-sixth interest; that in August, 1942, defendant became the operating partner; that, for the purpose of inducing plaintiff to sell his interest in the partnership, defendant made certain false and fraudulent representations to plaintiff, which are set forth in detail in the complaint; that plaintiff relied on said false and fraudulent representations, and, as a result, in San Francisco, executed two agreements, set forth as exhibits, by which he relinquished his interest in the partnership. The date of the discovery of the alleged fraud is set forth, and it is alleged that on that date (July 1, 1943) plaintiff served upon defendant a notice of rescission. The prayer of the complaint is that the contracts by which the sale of plaintiff’s interest was accomplished be canceled and be declared null and void; that plaintiff be adjudged to be a general partner; that an accounting be ordered, and for other and further relief as may be proper.