Winstanley v. Gibson

California Court of Appeal

Winstanley v. Gibson

284 P.2d 202, 133 Cal. App. 2d 451, 1955 Cal. App. LEXIS 1644

CourtCalifornia Court of Appeal

DecidedJune 7, 1955

DocketCiv. No. 20765

StatusPublished

Cited by4 cases

This text of 284 P.2d 202 (Winstanley v. Gibson) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Winstanley v. Gibson, 284 P.2d 202, 133 Cal. App. 2d 451, 1955 Cal. App. LEXIS 1644 (Cal. Ct. App. 1955).

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Opinion

DRAPEAU, J.

Appellant moves to strike out all or portions of a brief filed in this court on behalf of certain respondents in the Estate of Green, now pending on appeal in this court.

The motion is based upon two grounds: (1) that the persons in whose behalf the brief is filed are not in fact respondents ; and (2) that portions of the brief are irrelevant.

In support of the first ground appellant states that nothing is distributed to the respondents in a decree of preliminary distribution in the estate concerning which the appeal is pending.

But they are listed as respondents in the clerk’s transcript in the case on appeal, and under rule 14, Eules on Appeal are entitled to file briefs.

This court is unwilling to go beyond the record, and strike out briefs upon statements of counsel or affidavits of parties. Courts prefer to rest their decisions upon the merits of causes, rather than to spend time on matters collateral to questions on appeal. (Strauss v. Kroop, 207 Cal. 39 [276 P. 993].)

So far as the motion to strike irrelevant portions of the brief is concerned, it is concluded that it will be better to consider the appeal on all of the briefs submitted, rather than to spend time determining what, if any, portions of briefs are or are not relevant, or should or should not be stricken out. Irrelevant matters in briefs do not have any persuasive weight in determining an appeal. And, in any event, this is a matter committed to the discretion of the reviewing court. (Carpenter v. Pacific M. Life Ins. Co., 10 Cal.2d 307 [74 P.2d 761].)

The motion is denied.

White, P. J., and Doran, J., concurred.

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DRAPEAU, J.

Appellant moves to strike out all or portions of a brief filed in this court on behalf of certain respondents in the Estate of Green, now pending on appeal in this court.

The motion is based upon two grounds: (1) that the persons in whose behalf the brief is filed are not in fact respondents ; and (2) that portions of the brief are irrelevant.

In support of the first ground appellant states that nothing is distributed to the respondents in a decree of preliminary distribution in the estate concerning which the appeal is pending.

But they are listed as respondents in the clerk’s transcript in the case on appeal, and under rule 14, Eules on Appeal are entitled to file briefs.

This court is unwilling to go beyond the record, and strike out briefs upon statements of counsel or affidavits of parties. Courts prefer to rest their decisions upon the merits of causes, rather than to spend time on matters collateral to questions on appeal. (Strauss v. Kroop, 207 Cal. 39 [276 P. 993].)

So far as the motion to strike irrelevant portions of the brief is concerned, it is concluded that it will be better to consider the appeal on all of the briefs submitted, rather than to spend time determining what, if any, portions of briefs are or are not relevant, or should or should not be stricken out. Irrelevant matters in briefs do not have any persuasive weight in determining an appeal. And, in any event, this is a matter committed to the discretion of the reviewing court. (Carpenter v. Pacific M. Life Ins. Co., 10 Cal.2d 307 [74 P.2d 761].)

The motion is denied.

White, P. J., and Doran, J., concurred.

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284 P.2d 202, 133 Cal. App. 2d 451, 1955 Cal. App. LEXIS 1644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/winstanley-v-gibson-calctapp-1955.

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