Follett v. Brown

MARKS, J.

Appellants are the children and widow of Leonard P. Follett, who was killed in a collision with an automobile belonging to L. J. Hayes and driven by W. D. Brown, on Third Street in the city of San Bernardino at about 6 o’clock in the afternoon of December 24, 1928. The case was tried before a jury, which returned a verdict in favor of appellants in the sum of $5,000.

Respondents made a. motion for a new trial upon the following grounds: “1. Excessive damages, appearing to have been given under the influence of passion or prejudice. 2. Insufficiency of the evidence to justify the verdict. 3. Insufficiency of the evidence to justify the judgment. 4. That the verdict is against law. 5. That the judgment is against law. 6. Errors in law occurring at the trial, and excepted to by the said defendants.” The order granting the motion for new trial appears in the record as follows: “Motion to vacate and set aside the verdict of the jury and grant a new trial herein, and heretofore submitted, is at this time granted. ’ ’

Appellants’ opening brief contains 118 pages with a 26-page supplement. The first 111 pages contain long quotations from the evidence and brief comments by counsel. The remaining seven pages contain an argument and citations on the following propositions: ‘ ‘ The general minute order of the court which merely recites that the motion is granted, without specifying specifically the grounds thereof, excludes the question of ‘insufficiency of the evidence’,” and “The damages allowed herein by the verdict and judgment thereon are not excessive.” There is no mention in the brief of any of the other grounds specified in the motion for new trial upon which the motion might have been granted.

[200]

Counsel for appellants should read the case of

Burns

v.

Renaker,

116 Cal. App. 139 [2 Pac. (2d) 408], and Rule VIII of Rules of the Supreme Court and District Courts of Appeal and consider the insufficiency of his brief in the light of the language there used.

The following quotations from 2 California Jurisprudence are appropriate: “The appellate court can not be expected to prosecute an independent inquiry for errors upon which the appellant may possibly be relying. It will notice only those assignments pointed out in the brief. All others are deemed to have been waived or abandoned.” (Page 728.) “An appellate court cannot assume the task of discovering the error in a ruling, and it is the duty of counsel by argument and the citation of authority to show the reasons why the rulings complained of are erroneous. Contentions supported neither by argument nor by citation of authority are deemed to be without foundation, and to have been abandoned. Such contentions will not be considered by an appellate court, unless they are embraced in a discussion of other points. This has been repeatedly declared by the courts.” (Page 732.) “All presumptions are in favor of an order granting or denying a new trial, and the burden is upon the appellant to make it affirmatively appear by a proper record that the order complained of is erroneous.” (Page 887.) “When an order granting a new trial is silent as to the ground upon which it is made, and the record shows the existence of a valid ground, it will be presumed that the order was based on that ground. And where the order is granted upon a discretionary ground, every presumption will be indulged in favor of the proper exercise by the trial court of its judicial discretion.” (Page 891.)