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


Civ. No. 15596.

Decided: May 27, 1954

Leo R. Friedman, San Francisco, for Joseph Shenson. Albert Picard, San Francisco, for Viola Shenson. M. Mitchell Bourquin and John E. Lynch, San Francisco, for Berman. Jefferson E. Peyser, San Francisco, for Kaplan.

In their briefs on this appeal respondents Berman and Kaplan included figures which they then claimed supported the exact amounts of the judgments awarded to them. As we pointed out in our opinion, 269 P.2d 170, there was no mathematical calculation which we could discover from the record which would support the judgments as given. Belatedly in their petition for rehearing respondents Berman and Kaplan admit this fact and now claim for the first time that the trial court made a mathematical error of $54 in each of their judgments. They accordingly ask us now to make new findings and amend the judgments in their favor accordingly. This request comes too late. Counsel may not argue an appeal piecemeal by raising new questions for the first time on petition for rehearing. Bradley v. Bradley, 94 Cal.App.2d 310, at page 312, 210 P.2d 537, 211 P.2d 638 and cases cited.

However there is a more fundamental objection to our doing what counsel ask. Under the rule of Whann v. Doell, 192 Cal. 680, 684–685, 221 P. 899, the lack of findings showing the manner in which the trial court disposed of an accounting is not fatal to the judgment if the appellate court can ascertain from the record the manner in which the court arrived at its judgment, i. e. if by allowing certain items and disallowing others the appellate court can arrive at the amount of the judgment, it then becomes clear from the record how the judgment was arrived at by the trial court. The difficulty here is, that as counsel now admit, this cannot be done. They ask us to assume that the trial court allowed certain items but in doing so made a mathematical error. Such an assumption would take us into the field of pure speculation.

Rehearing denied.


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