Hayden v. Hatch

FINLEY, J. pro tern.

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This is an appeal from a money judgment in favor of plaintiffs-respondents and against defendants-appellants in the sum of $3,000 plus interest for damages based upon a finding by the court that respondents were entitled to rescission of a contract for purchase from appellants of the right to manufacture and sell a “bust pad” with the trade name of “Hatch Contourette.”

The appeal also purports to be from the order denying appellants’ motion for a new trial. Since there is no appeal from an order denying a motion for a new trial in a civil action, this portion of the appeal will be dismissed. (Code Civ. Proe., § 963.) The court’s ruling on the motion is, however, reviewable on appeal from the judgment. (Code Civ. Proe., § 956.)

Appellants do not set out in so many words the points urged for reversal, but their argument is to the effect that the evidence is insufficient to justify the findings and judgment, and that appellants were guilty of laches and thereby forfeited any right to rescind.

The record consists of over 400 pages of testimony. Appellants have devoted much time and space in their brief to summarizing most of it and in reproducing portions thereof verbatim. They have not pointed out any manner in which the trial court committed prejudicial error in the conduct of the trial in admitting or excluding evidence or in applying rules

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of law to the findings made. The sum and substance of their argument is that in view of the evidence most favorable to appellants, the trial court should have arrived at a different conclusion.

It seems strange indeed that, in view of the numberless and constantly recurring pronouncements by appellate courts that they cannot invade the province of the jury or trial judge, litigants still persist in appealing cases on the ground that the trier of fact believed the wrong witnesses and relied upon the wrong evidence. The statement has become almost classical that where sufficiency of the evidence is questioned, the province and duty of an appellate court begins and ends with a determination that there is in the record evidence legally sufficient to support the findings and judgment. As is pointed out in