BERRY v. RYAN (1950)

From a judgment in favor of plaintiff in an action to recover for money allegedly due under a contract, and against defendant on his cross-complaint seeking to recover money he had paid to plaintiff under a contract, defendant appeals. There is also a purported appeal from the order denying the motion for a new trial.

Respondent (plaintiff) has not favored this court with a brief. Appellant (defendant) seeks reversal of the judgment on the ground, among others, that the evidence does not sustain material findings of fact of the trial court. Since respondent has not filed a brief we assume that (1) the facts as stated in appellant's brief are true, (2) the evidence is insufficient to support material findings of fact of the trial court, and (3) respondent has abandoned any attempt to support the judgment, and that the ground urged by appellant for reversing the judgment is meritorious. (Postin v. Griggs, 66 Cal.App.2d 147, 148, 151 P.2d 887; Zeigler v. Bonnell, 52 Cal.App.2d 217, 218, 126 P.2d 118; Bendlage v. Kohlsaat, 54 Cal.App.2d 136, 139 et seq., 128 P.2d 691. Cf. Lawrence v. Johnson, 131 Cal. 175, 177, 63 P. 176.)

Applying the foregoing rule it is evident that if material findings of the trial court are not supported by the evidence the judgment should be reversed.

The judgment is reversed and the purported appeal from the order denying the motion for a new trial which is a non-appealable order is dismissed.

McCOMB, Justice.

MOORE, P. J., and WILSON, J., concur.