Franklin v. Bettencourt

[512]

THOMPSON, J.

This is a motion under the provisions of rule V, section 3, of the Rules for the Supreme Court and the District Courts of Appeal to dismiss the appeal or affirm the order granting a new trial, on the ground that the appeal was taken for delay and is frivolous. The appeal is from the judgment roll only. The evidence and proceedings of the trial are not before this court.

The plaintiff Franklin brought suit against the defendant Bettencourt for approximately $28,000 damages for serious and permanent injuries sustained as a result of an automobile collision which is alleged to have occurred through the negligence of the appellant. The appellant denied the material allegations of the complaint, and filed a cross-complaint against the respondent and one Elmer, Martin, affirmatively alleging that the collision occurred through the negligence • of the cross-defendants, asking for damages against them. The respondent answered the cross-complaint, denying the material allegations thereof. The record fails to show that summons on the cross-complaint was issued or served on Elmer Martin. He made no appearance in the case. Judgment was not rendered for or against Elmer Martin. At the trial of the cause with a jury a verdict was returned in favor of the respondent Franklin in the sum of $650. Judgment was rendered accordingly. Appellant neither presented special issues for the determination of the jury nor objected to the verdict or judgment which were rendered. The plaintiff, however, was dissatisfied with the amount of the judgment and moved for a new trial on the sole ground that the amount of damages awarded by the verdict and judgment is inadequate to compensate -him for the permanent and serious injuries which he sustained. The motion for a new trial was granted bn that ground only. From the order granting a new trial this appeal was perfected. The appeal was taken from the judgment roll only. The evidence and proceedings of the trial are not before this court. After the appellant’s brief on appeal had been filed, the respondent moved this court under the provisions of rule V, section 3, of the Rules for the Supreme Court and the District Courts of Appeal to dismiss the appeal or affirm the order on the ground that the appeal is frivolous.

[513]