Black v. Black

• Citation: 33 Idaho 226,191 P. 353
• Parties: SUSIE M. BLACK, Respondent, v. BERT BLACK, Appellant
• Decision Date: 16 July 1920
• Court: Idaho Supreme Court

191 P. 353

33 Idaho 226

SUSIE M. BLACK, Respondent, v. BERT BLACK, Appellant

Supreme Court of Idaho

July 16, 1920

EVIDENCE-DOCUMENTARY-ORAL-CONFLICT-VERDICT-FINDING.

1. Where the material evidence is not all documentary, but is in part oral and conflicting, this court will not disturb either the verdict of the jury or the finding of the trial court if there is substantial evidence to support either.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Action contesting the admission of a purported will to probate. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Thos E. Buckner and Stone & Jackson, for Appellant.

If there is any doubt or conflict in the evidence, it arises from a comparison of the handwriting of the proposed will with the voluminous exhibits which are conceded to have been written by William A. Black.

The "substantial evidence" upon which the verdict of the jury must stand or fall exists entirely within the written exhibits and not in the opinions expressed by the witness.

"Where a trial has been had entirely upon depositions and the trial court has not seen and heard the witnesses, the appellate court is in as favorable position for judging of the truthfulness of the witnesses and weight of the evidence as the trial judge, and will consider the same as if originally heard in the appellate court." (Roby v. Roby, 10 Idaho 139, 77 P. 213; Stoneburner v. Stoneburner, 11 Idaho 603, 83 P. 938; Van Camp v. Emery, 13 Idaho 202, 89 P. 752; Van Camp v. Breyer, 13 Idaho 209, 89 P. 754; Village of Sandpoint v. Doyle, 14 Idaho 749 95 P. 945, 17 L. R. A., N. S., 497; Council Imp. Co. v Draper, 16 Idaho 541, 102 P. 7; Spofford v. Spofford, 18 Idaho 115, 108 P. 1054; Parsons v. Wrble, 19 Idaho 619, 115 P. 8; Jones v. Marshall, 25 Idaho 678, 135 P. 841; Ainslie v. Idaho World Printing Co., 1 Idaho 641.)

Martin & Martin, for Respondent.

This court has never departed from the rule that it will not disturb a judgment entered upon conflicting evidence where any part of the evidence has been given by the witnesses in person before the trial court. (Jones v. Marshall, 24 Idaho 678, 135 P. 841.)

The evidence being conflicting, and there being substantial evidence to support the verdict, this court will not disturb the verdict. (Hardy v. Ward, 31 Idaho 1, 168 P. 1075; Casady v. Stuart, 29 Idaho 714, 161 P. 1026; Hemphill v. Moy, 31 Idaho 66, 169 P. 288; Brown v. Hardin, 31 Idaho 112, 169 P. 293; Labonte v. Davidson, 31 Idaho 644, 175 P. 588; Fleming v. Benson, 32 Idaho 103, 178 P. 482.)

BUDGE, J. Morgan, C. J., and Rice, J., concur.

OPINION

BUDGE, J.

This is an appeal from a judgment of the district court reversing an order of the probate court of Canyon county by which the purported will of William A. Black, deceased, had been admitted to probate. The only issue before the district court was whether or not the purported will had been entirely written, dated and signed by the deceased. The case was tried before the court and a jury, the latter returning a verdict that the deceased did not write, date and sign the document in question.

Appellant seeks to bring the case within the rule announced by this court in Roby v. Roby, 10 Idaho 139, 77 P. 213, and followed in the cases of Stoneburner v. Stoneburner, 11 Idaho 603, 83 P. 938; Van Camp v. Emery, 13 Idaho 202, 89 P. 752; Van Camp v. Breyer, 13 Idaho 209, 89 P. 754; Village of Sandpoint v. Doyle, 14 Idaho 749, 95 P. 945; 17 L. R. A., N. S., 497; Council Imp. Co. v. Draper, 16 Idaho 541, 102 P. 7; Spofford v. Spofford, 18 Idaho 115, 108 P. 1054; Parsons v. Wrble, 19 Idaho 619, 115 P. 8, 13, that "Where a trial has been had entirely upon depositions and the trial court has not seen and heard the witnesses, the appellate court is in as favorable position for judging of the truthfulness of the witnesses and weight of the evidence as the trial judge, and will consider the same as if originally heard in the appellate court."

The rule sought to be applied in this case is not in point, for the reason that all of the material testimony offered and received was not in writing and did not consist of evidence of written documents or writings of the deceased, but was made up both of documentary evidence and much conflicting oral testimony.

This court held in Ainslie v. Idaho World Printing Co., 1 Idaho 641, that where the material evidence is not all documentary, but is in part oral, the rule contended for by the appellant does not apply. The distinction was later clearly pointed out in Jones v. Marshall, 24 Idaho 678, 135 P. 841, in the following language:

"In the first place, it has been suggested that under the rule announced by this court in Roby v. Roby, 10 Idaho 139, , . . . . it is our duty to examine and weigh the evidence in this case as though it were being originally tried before this court. The fact that oral testimony was introduced before Judge Flynn, who rendered the decree in this case, is a sufficient and complete answer...