Later v. Haywood, 99 P. 828

Later v. Haywood

99 P. 828 | Idaho | 1909

AILSHIE, J.

This is an appeal from a judgment. The only assignment of error is that the evidence is insufficient to justify or sustain the findings and judgment of the court.

This action has been here twice before; first on an appeal from a judgment of nonsuit (12 Ida. 78, 85 Pac. 494), and again on an appeal from the judgment and order denying a motion for a new trial. (14 Ida. 45, 93 Pae. 374.) On the latter appeal the judgment was reversed and the ease was remanded, with directions to the trial court to make new findings covering all the issues in the ease, these findings to be based upon the evidence previously given. The trial court accordingly made findings, and entered judgment in favor of the defendant, and this appeal is taken from that judgment, and it is urged that the evidence is insufficient to support the findings of the court. On the previous appeal this same as*718signment was made by the appellant, and the court refused to consider the sufficiency of the evidence for the reason that the statement and bill of exceptions contained no specifications of particulars in which the evidence was alleged to be insufficient to sustain the findings and judgment. (14 Ida. 48, 93 Pac. 374.) It is contended by the respondent on this appeal that since the appellants have had one appeal from a judgment based on the identical evidence here presented, and urged the insufficiency of the evidence, and were unsuccessful for the reason that they failed to specify particulars in which the evidence was insufficient to sustain the findings and judgment, the decision in that case is therefore the law of the case, and they cannot again be heard to urge the insufficiency of the evidence on this appeal. This contention is not well founded. This is an entirely new judgment resting upon sufficient findings duly and regularly made. When the judgment was reversed on the last appeal, the case was remanded in all respects the same as if for a new trial, but instead of ordering and directing that the evidence be again produced before the court, this court directed that the trial judge make new findings based upon the evidence previously introduced in the case. The judgment entered upon those findings stands, to all intents and purposes, the same as if entered upon a new trial, and this is the first and only appeal ever taken from that particular judgment.

The appellants now challenge the sufficiency of the evidence in the case to support the findings made by the court. We have examined the evidence in this ease on several occasions. First, we examined the evidence that was brought here on the appeal from the judgment of nonsuit. We again examined it on appeal from the judgment and order denying a motion for a new trial, and have again examined it on this appeal. There is a clear and substantial conflict in the evidence. There is substantial evidence in the record to support the findings of the trial court. It must be admitted, on the other hand, that the preponderance of evidence is with the appellants, but we cannot reverse the judgment simply because the preponderance of the evidence is against the judgment. *719The rule is firmly established in this court that it will not reverse a judgment where there is a substantial conflict in the evidence, and this rule applies as well in equity cases heard upon oral testimony as in law cases. (Stuart v. Hauser, 9 Ida. 53, 72 Pac. 719; Morrow v. Mathews, 10 Ida. 433, 79 Pac. 196; Robbins v. Porter, 12 Ida. 738, 88 Pac. 86.)

The judgment should be affirmed, and it is so ordered, with costs in favor of respondent.

Stewart, J., concurs.