Johnson v. Ehrgott

WASTE, C. J.

Appellants brought this action to have canceled a certain written agreement for the exchange of real properties and to recover damages for alleged mis representations asserted to have induced the execution of such exchange agreement. Respondents’ demurrer to the tenth amended complaint was sustained without leave to amend. This appeal followed.

Respondents move to dismiss the appeal on the ground that appellants’ opening brief does not comply with Rule VIII of the rules governing appellate procedure in that it fails to present each point separately under an appropriate heading, and fails to set forth any part of the pleading involved with proper reference to the transcript.

While the brief assailed is not a model document, it sufficiently satisfies the provisions of the cited rule to preclude a dismissal. It contains a brief narrative of the contents of the complaint, and on page two thereof definite reference, by page and line, is made to the clerk’s transcript wherein may be found the material allegations of the complaint having to do with the circumstances surrounding the discovery of the alleged fraud after the expiration of the three-year period prescribed in section 338 of the Code of Civil Procedure. Under the circumstances, we are not inclined to dismiss the appeal, thus affording to both sides a hearing on the merits, which is always to be favored.

Motion denied.

Shenk, J., Seawell, J., Curtis, J., and Langdon, J., concurred.