I concur. It is evident from a reading of appellants' brief that the principal ground upon which they rely for a reversal of the judgment is that a number of the findings made by the trial court are either not supported by the evidence or are contrary to it.
The record on appeal is quite brief and I have examined the evidence set forth in the bill of exceptions. It seems clear to me that the findings of which appellants complain in their brief are amply supported by the record. Some of the questioned findings are supported by such a preponderance of the evidence that it might almost be said that there is no evidence to the contrary. Other of the findings are based upon conflicting evidence, but there is substantial material evidence in the record to support them. The balance of the findings of which appellants complain are supported by strong inferences reasonably drawn from competent and material evidence.
On appeal all conflicts in the evidence must be resolved in favor of the judgment and all reasonable inferences from the evidence must be drawn in its support. (Witherow v. UnitedAmerican Ins. Co., 101 Cal.App. 334 [281 P. 668].) In my opinion, if the case were considered on its merits the judgment would be affirmed. *Page 67
A petition for a rehearing of this cause was denied by the District Court of Appeal on August 19, 1932, and the following opinion then rendered thereon:
THE COURT.
Because of an apparent lack of knowledge or misunderstanding of the records of this court on the part of counsel for appellants as shown in their petition for rehearing, we deem it advisable to call attention to the following:
This cause was placed on the calendar for oral argument on June 14, 1932. There were present on the bench at that time Mr. Presiding Justice Barnard, Mr. Justice Jennings and Mr. Justicepro tempore Scovel. The minutes of the court show that before the calling of the calendar the following occurred: "Presiding Justice Barnard announced that unless objection was offered, it would be deemed as stipulated that Justice Marks and any justicepro tem., may participate in the decision of any cause on this calendar."
The minutes of that day contain the following concerning this case: "4 Civil No. 904, De Brito, et al vs San Diego Packing Co. Hearing on merits. Wm. H. Wylie, Esq., appeared for appellants and was granted leave to file reply memorandum. Jas. G. Pfanstiel, Esq., appeared for respondent and was granted 5 days to reply thereto. Cause then to be submitted." The cause was not orally argued, and no objection was made to the presumed stipulation as announced by the presiding justice.
The cause was submitted on July 11, 1932, at which time Mr. Justice pro tempore V.N. Thompson was sitting on this court under assignment of the Judicial Council of California.
The petition for rehearing is denied.
A petition by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on September 19, 1932, and the following opinion then rendered thereon: