207 P. 891 | Cal. | 1922
The plaintiff in this action sought and secured a judgment quieting his title as against the defendants to certain real property and annulling a recorded deed thereto which purported to convey title therein to the defendants and to have been made and delivered by plaintiff to the defendants. Briefly stated, the facts of the case are these: The plaintiff, an elderly widower with several children, contemplating matrimony, made and signed a deed, giving to his children, the defendants herein, the title to the property in suit, reserving, however, to himself a life estate therein.
Plaintiff admitted that he had made the deed in question, but testified, as a witness in his own behalf, that he did not at any time deliver the same to the defendants, or any of them, and that after making the deed he placed it in a bureau drawer in his home from which it was surreptitiously taken by one of the defendants and recorded without his knowledge and consent. The defendants, on the other hand, claimed, and one of them testified, that the plaintiff had delivered the deed to the defendants a short time after its making. The trial court found that the deed had never been delivered and the controversy here involves in part the question as to whether or not the evidence adduced upon the whole case is sufficient to support this finding.
[1] Apparently the finding of the trial court was made and based upon the testimony of the plaintiff concerning the making of the deed coupled with evidence of the circumstances preceding, attending and following its making. The testimony of the plaintiff consists of much more than mere general statements or assertions" and taken as a whole sufficiently supports the finding. Much may be said argumentatively against the persuasiveness of the plaintiff's testimony, but after all has thus been said there still remains *180
a conflict in the evidence adduced upon the whole case which cannot be dissipated by arguments which do no more than weigh the evidence upon which the findings in question rest and assail the credibility of the witness giving such testimony. [2] It is the well-settled and generally well-understood rule that a judgment may not be reversed for insufficiency of evidence when the evidence adduced upon the whole case is in conflict and that, upon appeal, with the evidence in that situation, no inquiry may be made concerning the preponderance of the evidence. The fact that a judgment may seem to this court to be against the weight of the evidence and that this court, if sitting in the place of the trial judge, might have found the facts different will not avail to obviate the application and operation of the rule. (Webster v. Lowe,
[3] In support of a motion for a new trial grounded, in part, upon alleged newly discovered evidence, the defendants presented in evidence upon the hearing of the motion an affidavit of one Flora Smith, which alleged that in January, 1920, after the controversy over the deed had arisen, in a conversation with her concerning the loss of the deed, the plaintiff said that "it was taken out of his possession, that four or five days after the deed was executed he discovered the deed was gone, that Elva [meaning defendant, Elva Luella Smith] had seen the deed and notified Charles Waer [one of the defendants] and they had concocted to steal it and had stolen it." It was an admitted fact in the case that the deed in question had been made and signed by plaintiff on or about May 10, 1919, and upon the trial of the case plaintiff testified that he had not discovered the loss of the deed until December, 1919, at which time he had made a search for the deed and failed to find it. In so far as the affidavit immediately under consideration purported to narrate a statement of the plaintiff which *181
in effect was contradictory of something he had testified to at the trial it was impeaching in its character and, therefore, insufficient on appeal as the basis of review of a motion for a new trial, for it is the rule in this state that "newly discovered evidence which is merely . . . designed to contradict a witness is not of a character to warrant a new trial." (People v. Anthony,
[4] In addition to the affidavit last mentioned, the defendants offered and there was received in evidence upon the hearing of the motion for a new trial the affidavit of one Caroline Boring, which averred that plaintiff, subsequent to the time of the alleged delivery of the deed to the defendants, told her "that he had deeded his home and property to his children but that he had a home there as long as he lived and a pension and that if she would marry him she could have a home there as long as she lived." This alleged newly discovered evidence embodied a direct admission of the plaintiff that he had "deeded" his home to his children, and it would have been competent evidence in behalf of the defendants upon the original trial of the case because it tended to show declarations of the plaintiff which were against his interest. It was obviously material to the paramount issue in the case and it was not solely impeaching within the meaning of the rule which prevents the granting of a new trial where the newly discovered evidence is merely cumulative and impeaching. It was not solely impeaching, for it would have been admissible even if the plaintiff had not been a witness in his own behalf. *182
(Code Civ. Proc., sec. 1870; Kenezleber v. Wahl,
Lawlor, J., Wilbur, J., Shurtleff, J., Waste, J., Sloane, J., and Shaw, C. J., concurred. *183
