121 P. 571 | Utah | 1912
The plaintiff brought this action to recover the sum of $2250, which she alleged was loaned and advanced by her “on an open account” to the defendant’s intestate at Ellco, Nev., on the 5th day of October, 1907, and which he promised to repay on the 21st of July, 1908. The jury rendered a verdict for the plaintiff in the sum of $1,500, and $54.25 interest.
Plaintiff’s principal witness was from Nevada. He testified that he had been a deputy sheriff, a constable, and night watchman, and that he was well acquainted with the plaintiff and the deceased. Some of his testimony is vague and rambling, and relates to matters wholly irrelevant
This is all the evidence adduced by the plaintiff in support of the allegations of her complaint, and is that portion of the evidence which is most favorable- to her. We think the question of insufficiency of this evidence to support the allegations of the complaint and the verdict is not open to debate. If the allegations of the complaint are true, the plaintiff is indeed unfortunate that the transactions in respect of her alleged loan were not evidenced by some writing; that she was not able to sustain her claim by the bank records or other evidence; and that her mouth, like that of the deceased, was closed. The vague and uncertain statements of her principal witness are far from proving the essential allegations of her complaint. They are neither certain nor definite as to any facts or transactions of a loan, or of money had and received, nor as to any amount, time, place, or circumstances of a loan. To take property from an estate on no more evidence than this, and to give it to another, is simply a judicial depletion of estates.
The judgment of the court below is therefore reversed, and the cause remanded for a new trial, costs to appellant.