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Rogers v. Burnham

136 Cal. App. 745 Court Fourth Appellate District. Decision date 1934-02-17 Docket Civ. No. 1107 English

Delivered by BARNARD, P. J.

Contents

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p. 745
[Civ. No. 1107.
Fourth Appellate District.
February 17, 1934.]
MARGARET ROGERS, Appellant, v. DONALD C. BURNHAM, as Executor, etc., Respondent.
Bertrand L. Comparet for Appellant.
Stearns, Luce & Forward for Respondent.

This is a motion to dismiss the appeal or affirm the judgment on the grounds that the court erred in relieving the appellant from her default in the matter of filing a bill of exceptions within the statutory time; that for this reason the court had no jurisdiction to settle a bill of exceptions; and that the points raised in the opening brief are so unsubstantial as to require no further argument.

p. 746
The case is one involving compensation for services claimed to have been rendered to a deceased person, and the appeal is based upon the contention that the evidence was not sufficient to sustain findings to the effect that such services were not rendered and that there was no account stated between the parties.

The points and authorities in support of this motion are very brief and consist mostly of references to certain portions of the transcript. The nature of the point raised on the appeal, and the manner in which this motion is presented, obviously require an examination of the transcript. (See City of Los Angeles v. Los Angeles-Inyo Farms Co., 126 Cal. App. 61 [ 14 Pac. (2d) 339 ] ; Brown v. Cow, 126 Cal. App. 113 [ 14 Pac. (2d) 322 ]; Inga v. Blum, 132 Cal. App. 15 [ 22 Pac. (2d) 34 ].)

It appears from the opening brief and the moving papers that serious questions are presented, as to the sufficiency of the evidence and as to an abuse of discretion on the part of the trial court, which will require an extensive examination of the record as well as a careful consideration of the authorities, in all of which the court is entitled to the assistance of the respondent.

The motion is denied.

Marks, J., and Jennings, J., concurred.

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