Bacich v. Homeland Insurance Co. of America

2 N.W.2d 125, 211 Minn. 619, 1942 Minn. LEXIS 699

• Court: Supreme Court of Minnesota
• Decided: January 23, 1942
• Docket: No. 33,147.
• Status: Published

Opinion

Per Curiam.

Motion to dismiss the appeal or to affirm the order appealed from upon the ground that appellant has failed to comply with Rule VIII(3)(e) [200 Minn, xxx].

The court below, without memorandum, sustained demurrers to the complaint. Appellant, though assigning this as error, urges nothing in support of reversal but offers so to do after the respondents have given their reasons why the demurrers should have been sustained. He contends that a complaint is presumed to state a cause of action until otherwise decided, and therefore the respondents should state the reasons why the complaint is faulty.

These contentions are erroneous. The presumption relied upon cannot operate upon appeal where there has been an order below which has decided that a complaint does not state a cause of action. Thereafter, if appellant seeks a modification of the order, he must sustain the burden of appealing and demonstrating the existence of error. He does not sustain this burden when he seeks to transfer to respondents the task of proceeding to justify the lower court’s action before the appellant has made out a case for error.

It is ordered that unless appellant files within 30 days a brief which conforms to the rule requiring the presentation of the points urged for reversal, the appeal will be dismissed.