EPPERSON v. ROSEMOND (1950)

Appellants where they blew very hot in their briefs blow very cold indeed in their petition for rehearing. In the petition for rehearing appellants say:

‘The Court, in its opinion assumed that defendants relied upon the special defenses of laches, estoppel and an account stated. This assumption is refuted by an examination of the pleadings.’

Counsel show something less than the ordinary amount of candor which might be expected in a petition directed to the same court which has read the briefs. Appellate courts do not look to the pleadings to ascertain the points urged on appeal. They look to the briefs.

The only headings (Rule 15(a) Rules on Appeal) appearing in appellants' opening brief read:

‘I. The Claim of Decedent is Barred by Laches.

‘II. The Decedent was Estopped from Asserting his Claim.

‘III. The Stated Accounts were Binding on Decedent.

‘IV. Profits did not Include Difference Between Book and Appraised Value of Assets.’

We held with appellants on their Point IV.

We invite counsel to read again their points I, II and III and the arguments under them. Such a reading will demonstrate why the court not only assumed that defendants relied on the special defenses of laches, estoppel and an account stated, but was compelled to believe that they placed their sole reliance on those three defenses. Because those are the only defenses which they did in fact present in their briefs.

Appellants in their petition for rehearing are now seeking to change their basis of attack on the judgment. ‘Appellate courts cannot submit to piecemeal argument and will not consider on petition for rehearing questions not previously raised.’ Bradley v. Bradley, 94 Cal.App.2d 310, 312, 210 P.2d 537, 211 P.2d 638.

Petition for rehearing denied.

PER CURIAM.