FARRIS v. PACIFIC STATES AUXILIARY CORPORATION (1934)

Motion to dismiss appeal or affirm judgment. On the hearing we denied the motion to dismiss appeal and submitted for decision the motion to affirm the judgment.

The judgment appealed from was upon a directed verdict at the close of the entire evidence in the case. The grounds set forth in the motion of respondent Pacific States Auxiliary Corporation to affirm the judgment are that the appeal is frivolous and that the questions presented are so unsubstantial as not to need further argument. No argument was therefore presented in said respondent's points and authorities accompanying its motion to affirm judgment to refute the contention appearing in appellant's brief. The action is for the possession of an apartment house and its furnishings. The appellant, who was the plaintiff in the action, contends in his brief on appeal that at the trial he made out a prima facie case in his favor. He refers to certain evidence in the reporter's transcript which tends to support this contention. If he is correct in this contention, then the motion for a directed verdict was erroneous as the issue under such circumstances became one of fact to be decided by the jury. Possibly there is evidence in the record which will explain the evidence relied upon by the appellant and demonstrate its lack of probative value. The record with its exhibits consists of something over three hundred pages of typewritten matter. We hardly feel that it is the duty of this court to spend its time in an exhaustive examination of this record in order to ascertain whether or not it contains the necessary evidence to justify the trial court's order granting the respondent's motion for a directed verdict. This burden, we think, should be assumed by the respondent.

The motion, therefore, to affirm the judgment is denied, and the respondent is given thirty days from the date of this order in which to file its brief in reply to that of the appellant.

PER CURIAM.