Duisenberg-Wichman & Co. v. Johnson

THE COURT.

The plaintiff herein, Duisenberg-Wiehman & Company, obtained a money judgment against the defendant H. L. Johnson, in an action involving certain corporate stock transactions, from which judgment the defendant appealed, urging as the main-ground for reversal the insufficiency of the evidence to support the trial court’s findings. The appeal was taken on a typewritten transcript prepared under section 953a of the Code of Civil Procedure. The transcript was filed in this court on October 26, 1929, and defendant’s opening brief was filed a month later,

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to wit, November 25, 1929. Plaintiffs failed to file any brief, and so far as the record shows no extensions of time were granted for such purpose, by stipulation or otherwise; and the cause was placed on a special calendar of this court pursuant to an order to the respondent to show cause why the judgment should not be reversed. Plaintiff did not appear at said hearing nor has it since offered any excuse for its failure tó file a brief.

Under the earlier decisions in this state it was held that where material findings were challenged on appeal on the ground of the insufficiency of the evidence to support them, and the respondent filed no brief and did not argue the case orally, the court would assume, without looking into the record, that the point urged by the appellant that the evidence was insufficient to justify the findings, was well taken and the judgment would be reversed.

(Richter

v.

Fresno Canal etc. Co.,

101 Cal. 582 [36 Pac. 96];

Davis

v.

Hart,

103 Cal. 530 [37 Pac. 486];

Kelly

v.

Bradbury,

104 Cal. 237 [37 Pac. 872];

Bullock