19 Or. 504 | Or. | 1890
(after stating the facts), delivered the opinion of the court.
The first inquiry suggested is, whether the proceeding, authorized by section 3141, is a suit in equity or an action at law. For the State it was argued that the words “in civil actions,” used in the section cited, supra, indicated that the action was at law, for the reason that if it had been intended to be an equity proceeding the word “suit” would have been used, and not action. But this construe
Another question raised is, whether this court will interfere if there is no evidence to support a finding. In Kyle v. Amy, 19 Or., which was tried without the intervention of a jury, and the finding excepted to, and the evidence included in a bill of exceptions, this court declined to review the evidence on the ground suggested, but remanded the cause for a fuller finding of the facts, but that was more in consequence of a want of particularity in the findings. In Hicklin v. McClear, 18 Or. 138, the court said by Thayee, C. J.: “If the findings of the circuit court are wholly unsupported by the evidence, and that fact is made to appear by a bill of exceptions purporting to contain all the evidence upon the point, this court would disregard the findings.” So that in Bartel v. Mathias, 19 Or. 482, where the question was raised that a certain finding of vital importance in the case was not supported by the evidence, and the evidence upon that point was set out in the bill of exceptions, this court examined it, but finding that there was some evidence having a tendency to support it, held that the finding of a referee is conclusive as to the facts found, if there was any evidence before them having a tendency to establish such facts. In the case in hand, the record discloses after the evidence was all in that the
Testing the evidence by these principles, we cannot do otherwise than affirm the judgment.
(1) 23 Am. Rep 138.