Tec-Art Studios, Inc. v. Fashion Feature Studios, Inc.

CONREY, P. J.

Comes now the respondent and moves to dismiss the appeal of defendant from the judgment in this action, or to affirm the judgment, on the ground that the appeal is taken for delay only, and on the further ground that the questions on which the decision of the cause depends are so unsubstantial as not to need further argument. The motion is presented under section 3 of rule Y of the rules of practice in this court. The text of said section 3, with some general comments thereon, may be found in

Dalton

v.

Los Angeles College of Chiropractic,

125 Cal. App. 196 [13 Pac. (2d) 546], It is a rule which provides for the dismissal of an appeal or affirmance of the judgment when in the opinion of the court the record justifies such dismissal or affirmance upon either of the grounds above stated.

In appellant’s brief it is said that the judgment was based on the supplemental complaint which was filed in

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lieu of the original complaint by leave of court during the progress of the trial; that the supplemental complaint alleges that the defendant became indebted to the plaintiff in a stated sum “by virtue of a certain contract and lease dated September 21, 1929, and June 7, 1930, respectively”; that therefore it became necessary for respondent to prove the execution by appellant of the two contracts and to prove the amount due and owing under each contract; that the only contract in evidence is the contract of June 7, 1930. The only points presented in support of the appeal are that there is a total failure of proof, and that there is a fatal variance between the proof and the allegations of the supplemental complaint.

But the record shows that the original complaint did allege the execution of both contracts. As to each contract it was alleged that there had become due from defendants a stated sum. The answer of appellant, properly construed, admitted the execution of the contracts, but denied that the amounts of indebtedness alleged in the complaint had accrued. This was further confirmed by the separate defense, wherein appellant alleged the execution of each of said contracts.