59 P.2d 328 | Ariz. | 1936
The judgment in this case was affirmed by us on the 4th day of November, 1935. We stated in the opinion that the sole questions involved on the appeal were whether the evidence sustained the findings of fact and the findings sustained the judgment, and gave an affirmative answer to both questions. On a motion for rehearing, counsel for the plaintiff urged most strenuously that we were in error in holding that the evidence sustained the findings, and asked for oral argument on his motion.
Because of the situation shown by the entire record in the case, contrary to our usual practice on motions of this nature, we granted an oral hearing, and have re-examined the entire record in the light of the arguments made at such hearing. As a result of that examination, we are compelled to hold as we did before, that there is evidence in the record which, if believed by the trial court and jury, as from the findings and judgment it evidently was, would *95 sustain the findings. Had we been sitting as jurors, we have grave doubts as to whether we would have reached the same conclusion, but, under our oft-repeated rule, we cannot pass upon the credibility of the witnesses, and, after all, this is the real issue in the case.
We are, therefore, somewhat reluctantly compelled to affirm our previous opinion.
McALISTER and ROSS, JJ., concur.
