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District Court of Appeal, Second District, Division 2, California.


Civ. 9521.

Decided: January 24, 1936

William E. Reiley, of Los Angeles, for appellant. Robert H. Dunlap and George R. Larwill, both of Los Angeles, for respondents.

This is an appeal from a judgment in favor of the defendants and from an order denying a motion for a new trial, in an action for the rescission of a promissory note and for injunctive relief.

Appellant's opening brief, including the appendix, contains 721 pages, and we have had to read to page 110 to find what are the points upon which appellant relies because the topical index which is intended to give us some preliminary information contains only one item on the subject as follows: “Points and Authorities ․110.”

Section 2 of rule VIII, Rules of the Supreme Court and District Courts of Appeal, which provides that a statement of the question involved on appeal shall be set forth on the first page of appellant's opening brief, provides further “the statement in its entirety should not exceed twenty lines, must never exceed one page.” One of the penalties for a failure to observe this rule is that the court may dismiss the appeal on its own motion. The appellant has violated this rule by consuming three pages in this statement. Having convinced ourselves by reading the briefs from beginning to end as well as large portions of the record that there is no reversible error, we were first inclined to dismiss the appeal for failure to comply with the rule, and, if this case were one which came to us by direct appeal, we would do so. But the case is one in which the appeal was first taken to the Supreme Court and was thence transferred to this court because we are fully caught up with our work and are able to take additional work. Upon a petition for transfer to the Supreme Court, which may later be made, that court may wish to know what the case is all about, and for that reason we shall take the time and extra labor involved in setting forth the contentions of appellant and the grounds for our decision that there is no reversible error.

Turning now to the points upon which appellant relies, we find that the first 19 of them are contentions that there is no evidence to sustain the findings of the trial court.

There is no shorter nor more economical method of illustrating the great majority of appellant's contentions and, indeed, the nature of the case as well, than to present the first paragraph of the three pages which appellant has designated “Questions presented by the appeal.” After boiling it down, it reads as follows: “Where a woman in June 1930 guarantees a note of her son for $12,750, which sum represents the accumulated indebtedness of her husband, from whom she is getting a divorce, evidenced by four notes; another note for $75, executed by one son, and another note by another son for $575. And none of these notes was surrendered, canceled, marked paid or in any way extinguished until January, 1931. Was there any consideration for the original note of $12,067.50? If there was no consideration for the first note was there any consideration for a second note which included the $12,067.50 item?” The answer to appellant's questions is that there is absolutely nothing in the hypothesis which she presents that would preclude a trial court from finding that there was a consideration for the promissory note sued upon. We give this illustration for the reason that by the appellant's own admission “this question of consideration runs throughout all the findings and is the essential basis for the conclusions of law. * * *”

Appellant says on page 115 of her brief: “We are not unmindful of the rule that a promissory note itself carries with it a presumption, and that this presumption is evidence. And it being evidence, there is an apparent conflict in the testimony at the trial, and that this court will not weigh evidence. But * * *,” etc. The brief is shot full with other acknowledgments on the part of appellant that this court will not weigh evidence and that, where there is a substantial conflict in the testimony at the trial, this court on appeal will not interfere with the findings. Nevertheless, she does not appear to be able to make practical application of the rule, for the case is presented and argued by the appellant as though this court were a factfinder, as though we were authorized to weigh evidence and determine conflicts, as though she were entitled on appeal to a trial de novo. Appellant must keep in mind that it is our duty to view the evidence in the light most favorable to the parties who were successful in the trial court, and that, when the contention is made that there is not sufficient evidence to sustain a finding, our duty in that regard stops when we have found any substantial evidence to support the finding. And this is true, however strongly such evidence may be opposed by other evidence. This rule is applicable even where the evidence of the successful party upon the issue consists merely of a disputable presumption, as, for example, where the sole evidence of a consideration for a note sued on is the presumption arising from its execution (2 Cal.Jur. 933, and cases cited), although in the instant case there is much more and much stronger evidence of a consideration for the note. For a valuable discussion of the question of consideration for a promissory note where the same contention of lack of evidence was raised, see Herbert v. Lankershim (Cal.App.) 52 P.(2d) 1007. Appellant should also keep in mind that in reviewing the sufficiency of the findings to support a judgment regard will be had to the ultimate facts found, and not to mere probative facts which are not shown by the findings to be the only facts proved and the only facts or evidence from which the court finds the ultimate facts. 2 Cal.Jur. 872, and cases cited in Ten-Year Supplement, 1926-1936, vol. 1, p. 528.

We have read the briefs from beginning to end and parts of appellant's briefs three or four times, and we are satisfied that there is substantial evidence to sustain the ultimate findings of the trial court. It would serve no useful purpose to set out the evidence upon which we rely for this statement. Koeberle v. Hotchkiss (Cal.App.) 48 P.(2d) 104.

The next contention of the appellant is that the court erred in overruling the motion for a new trial because of the insufficiency of the evidence to sustain the findings. This contention is like unto those which have gone before and falls with them upon the same ground.

The final contention is that the court erred in overruling the motion for a new trial upon the ground of newly discovered evidence. Motions for a new trial on this ground are never favored, and it would take a strong showing of abuse of discretion before an appellate court would reverse a judgment on this ground. In this case the evidence was not newly discovered. The existence of the witness, his whereabouts and what he would testify to, were known by the appellant and her counsel at the time of the trial. No application for a continuance was presented and no showing of diligence such as would entitle the appellant to a continuance was made. There is no merit in any of appellant's contentions.

Judgment and order appealed from affirmed.

CRAIL, Presiding Justice.

We concur: WOOD, J.; McCOMB, Justice pro tem.