Platt v. Platt

269 P. 657 | Cal. | 1928

THE COURT.

[1] The respondents move to affirm the judgment appealed from upon the ground that the appellant has failed to print in her opening brief or any supplement thereto, in accordance with the requirements of section 953c of the Code of Civil Procedure, any part of the record herein sufficient to justify a reversal of said judgment. At the time of the filing of respondents' notice of motion to affirm the state of the record was such as would have warranted an affirmance of the judgment, for the appellant's opening brief falls far short of satisfying the requirements of section 953c, supra. However, subsequent to the filing of the notice of motion to affirm, but prior to the making of such motion, the appellant, with permission of court, filed herein a supplement to her opening brief in which she sets out at length the complaint, the amended answer thereto, the trial court's findings of fact and conclusions of law, the judgment, the notice of appeal, the notice to prepare transcript, several exhibits introduced in evidence, appellant's assignments of error, and certain of the testimony adduced upon the trial. In view of this showing we think the motion to affirm should be denied. This conclusion is not at variance with the holding in Dahlberg v. Dahlberg, 202 Cal. 295 [260 P. 290], for the appellant in that case, upon the hearing of the motion to affirm, merely offered to print in a supplemental brief such portions of the record as this court might suggest. The approval of the suggested procedure would have placed the burden of presenting the appellant's appeal upon the court. Such is not the case here.

The motion to affirm is denied.