Davis v. Lucas

Respondent John A. Davis, the surviving husband of Gladys B. Davis, sued Kathryn B. Lucas, individually and as executrix of Mrs. Davis’ will, for a judgment quieting in plaintiff title to certain real property which he alleged to be his separate estate. Judgment went in his favor and defendant appeals.

Appellant claims the property to have been community property in which she, as sole devisee of her mother’s will, is entitled to a one-half interest. Her main contention is that the evidence is insufficient to sustain the court’s finding that it was at all times plaintiff’s separate property. Her counsel makes numerous separate claims, all of which converge upon this one central issue. They are reflected in reporter’s transcripts comprising some 300 pages, and counsel for appellant devotes six pages of his opening brief to the discussion of the sufficiency of the evidence; most of that space is occupied by citations and quotations from cases announcing legal principles applicable to the facts as he asserts them to be. This method overlooks cardinal rules applicable to appellate review.

The appellate court starts with the presumption that the evidence sustains each finding of fact (Gold v. Maxwell, 176 Cal.App.2d 213 , 217 [ 1 Cal.Rptr. 226 ]; Cooper v. Cooper, 168 Cal.App.2d 326 , 331 [ 335 P.2d 983 ]), and the burden rests upon appellant “to demonstrate that there is no substantial evidence to support the challenged findings.” (Nichols v. Mitchell, 32 Cal.2d 598 , 600 [ 197 P.2d 550 ]; see also New v. New, 148 Cal.App.2d 372 , 383 [ 306 P.2d 987 ]; Cooper v. Cooper, supra, at page 331, and Gold v. Maxwell, supra, at p. 233.) To this end appellant must set forth in his brief all material evidence upon the point, not merely his own proofs (Kruckow v. Lesser, 111 Cal.App.2d 198 , 200 [ 244 P.2d 19 ]; Gold v. Maxwell, supra, at 233; Cooper v. Cooper, supra, at 331); if this is not done the point is deemed

Appellant claims the Webb ease does not apply because the returns were offered by the executrix of one of the parties who made them, not a stranger. But we need pursue this subject no further, for these returns, if received in evidence, would have operated only to create or emphasize a conflict in the proofs and, as we cannot resolve such conflicts, the error, if any, was not prejudicial in legal contemplation.

Finally, appellant attacks as outside the issues the court’s finding to the effect that plaintiff’s business and its proceeds were his separate property and that the spouses so agreed. Examination of the record discloses that this is a pertinent finding upon a subordinate issue raised by the evidence. “ It is settled law in California that where an action is tried before the court without a jury, in the absence of a waiver, findings are required upon all material issues presented by the pleadings and the evidence.” (Severance v. Knight-Counihan Co., 29 Cal.2d 561 , 576 [ 177 P.2d 4 , 172 A.L.R. 1107 ].) Appellant’s opening brief says: “A down payment on the property was made by Mrs. Davis. The proceeds of the business were used in paying off the balance.” Respondent’s brief: “She [appellant] was contending during the trial and still contends that the income from the Davis Sales Yard was community property and that such community property income was used to make payments in purchasing the real property which is the subject of this litigation. Had the trial court not made a finding on this issue, appellant would undoubtedly have argued that such failure to find constituted prejudicial error.” Obviously it was material to the determination of whether the property was com