Cheney v. Hovey, 56 Kan. 637

Cheney v. Hovey

56 Kan. 637 | Kan. | 1896

The opinion of the court was delivered by

Martin, C. J.

: I. The real controversy in the court below between Hovey, as plaintiff, and Cheney, Cross, and the First National Bank of Jerseyville, as defendants, was as to the bona Jules of the $10,000 note and mortgage to Abbie R. Parsons, and the indorsement, assignment, and transfer of the same to Hovey. We deem it unnecessary to review the evidence, although we have read and considered it all, as earnestly requested by counsel for plaintiffs in error. There is much conflicting testimony, taken orally and by deposition ; and if this court were the trier of the facts upon the testimony now appearing in the record, perhaps we should say that we regarded the whole transaction as fraudulent; but the trial court' held otherwise, and had a better opportunity of judging the value of the testimony than we possess here, for several of the most important witnesses testified in open court. It has been settled in this court since an early day that in a jury trial where there is.clear and positive testimony sustaining every essential point, and the verdict has received the approval of the trial court, it will not be disturbed, although upon the record the evidence seems greatly to preponderate the other way. (K. P. Rly. Co. v. Kunkel, 17 Kan. 145, 168, 169, and cases cited.) And the same principle is applicable to the general or special findings of the court when the trial is had without the aid of a jury. *642In such case, where there is some evidence fairly supporting all the material conclusions of fact, and a motion for a new trial has been overruled, such conclusions will not be disturbed by this court, although apparently against the weight of the evidence. (Ketner v.Rizer, 34 Kan. 603 ; Giffen v. Johnson, 43 id. 678 ; White v. Bird, 45 id. 759.) This court has suggested an exception to the rule where a case is tried by the court below wholly upon depositions or other written evidence, for then it comes here for examination in about the same attitude as before the trial court. (Durham v. Coal and Mining Co., 22 Kan. 232, 243; Woodward v. Clark, 30 id. 78.) This case, however, comes within the rule, and does not fall within the exception; and, as between Hovey and the plaintiffs in error, the judgment must be affirmed.

II. Ida E. Russell filed an answer and counter-claim, in which she attacked the Cheney judgment, the judgment of the First National Bank of Jerseyville, and the sheriff's deed to Andrew W. Cross ; and the court found in her favor, and adjudged that any balance of the proceeds arising from the sale of the farm after the satisfaction of the Hovey judgment should be paid to her. The plaintiffs in error complain of this, and, if the value of the farm exceeds the amount due on the Hovey judgment, the matter may be important ; and upon this question we think the evidence does not fairly tend to support the findings of the court. The validity of the original claim of indebtedness by Cheney is very doubtful, and, if the controversy were between Cheney and the creditors of I. E..Howe & Co., the findings would be sustained. But this was an attack by Ida E. Russell (formerly Mrs. Howe) upon judgments which she had been instrumental in having rendered against her firm, on *643obligations the validity of which she asserted by the execution of the mortgages to secure them in the first instance, and afterward by entering her appearance in the actions and then making default, so that judgment might be taken without other proof than that which she had created by her own hand. We think this branch of the case falls within the exception to the rule as to the conclusiveness of the findings of the court upon conflicting oral evidence. Tn Durham v. Coal and Mining Co., supra, the cpurt, - “ Where, testimony is drawn frojn. ihe lips of a party or his agents, no wrong vnH" ordinarily be done such party if the testimony'so given be accepted as true. A party’s admissions are good against him ; so is his testimony.” And in Woodward v. Clark, supra, where the liability of the defendant as a partner was the real issue, and the proof of the partnership consisted of correspondence, this court reversed the judgment of the court below upon a demurrer to the evidence, and held that the defendant was liable as a partner. If Mrs. Howe executed the mortgages in order to evidence an indebtedness that did not exist, and then waived service and made default, so that judgments might be taken against her, she stands in no position to obtain relief against the judgments, or against the sheriff’s deed which was executed in satisfaction of one of them.

The plaintiffs in error have assigned numerous errors, principally upon the admission of evidence ; but, in the view which we take of the case, it is unnecessary to consider them. The conclusions of fact favoring the said Ida E. Russell, however, we cannot order judgment against her, but must reverse the judgment as between her and the plaintiffs'in error, and remand the case for a new trial as to them.

All the Justices concurring.