306 F2d 32 Investment Funds Corporation v. Bomar

306 F.2d 32

Thomas BOMAR, Trustee of Kitimat Corporation, Appellee.

No. 19006.

United States Court of Appeals Fifth Circuit.

Aug. 15, 1962.

John J. Intravia, Fort Lauderdale, Fla., for appellants.

Thomas B. DeWolf, Miami, Fla., C. Shelby Dale, Fort Lauderdale, Fla., for appellee.

Before TUTTLE, Chief Judge, and JONES and GEWIN, Circuit Judges.


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In its motion for rehearing appellee criticizes the statement of facts as recited in the Court's opinion. A careful analysis of this criticism discloses that it is unfounded. Rule 24 of this Court, 28 U.S.C.A., under the heading of 'Briefs,' provides in Section 2(a) that the briefs shall contain 'a concise abstract or statement of the case.' Under Section 3 the Rule provides that the appellee's brief shall be of like character, but that 'no statement of the case' is necessary 'unless that presented by the appellant or petitioner is controverted.' It is fundamental that the Court of Appeals may accept the statement of the appellant touching on the facts of the case unless these are controverted by the appellee. The Court cannot be expected to search the record for support of all of the statements of fact made in appellant's brief. It does so only where a controversy as to such statement is created by a contrary statement contained in the brief of the appellee. We are satisfied that the statement of facts contained in our opinion correctly presents the underlying facts necessary for a determination of the legal issue-- that is whether the payments to Poore were payments to an agent for the true lenders of the mortgage money and should thus be added to he interest which the borrowers were obligated to pay on the mortgage in order to determine whether the rate of interest exceeded the statutory limit.

The motion for rehearing is