Heckman v. Espey

• Citation: 88 P. 80,12 Idaho 755
• Parties: MARTIN HECKMAN et al., Appellants, v. E. E. ESPEY, Respondent
• Decision Date: 15 December 1906
• Court: United States State Supreme Court of Idaho

88 P. 80

12 Idaho 755

MARTIN HECKMAN et al., Appellants, v. E. E. ESPEY, Respondent

Supreme Court of Idaho

December 15, 1906

PROSPECTING PARTNERSHIP-INSUFFICIENCY OF EVIDENCE-SUBSTANTIAL CONFLICT-NEWLY DISCOVERED EVIDENCE-CUMULATIVE AND CORROBORATIVE-DISCRETION OF TRIAL COURT.

1. Where there is a substantial conflict in the evidence, the findings of the trial court will not be disturbed.

2. The granting of a new trial is largely in the discretion of the trial court, and when based on affidavits of newly discovered evidence that are only corroborative and cumulative of the evidence introduced on the trial, the decision of the court on the motion for a new trial will not be disturbed.

(Syllabus by the court.)

APPEAL from the District Court of Second Judicial District for Idaho County. Hon. Edgar C. Steele, Judge.

Action to establish prospecting partnership. Judgment for defendant. Affirmed.

Judgment affirmed. Costs awarded to the respondent.

Forney & Moore, for Appellants, cite no authorities.

Scales & Taylor, for Respondent.

Where evidence is conflicting, and the lower court has decided such conflicting issues of fact, the appellate court will not disturb the findings of the lower court; the courts of all the states are in accord on this doctrine; and this court has repeatedly so held. (Deeds v. Stephens, 10 Idaho 332, 79 P. 77; Robertson v. Moore, 10 Idaho 115, 77 P. 218; Abbott v. Reedy, 9 Idaho 577, 75 P. 764; Cowden v. Finney, 9 Idaho 619, 75 P. 765; Cowden v Mills, 9 Idaho 626, 75 P. 766.)

On verdict on conflicting evidence, see Simpson v Remington, 6 Idaho 681, 59 P. 360; Bonner v Powell, 7 Idaho 104, 61 P. 138; Kendrick State Bank v. Northern P. Ry. Co., 10 Idaho 483, 79 P. 457; Spencer v. Morgan, 10 Idaho 542, 79 P. 459; Gumaer v. White Pine Lumber Co., 11 Idaho 591, 83 P. 771; Turmes v. Kiesner (Idaho), 85 P. 212.

The appellate court will give the finding of the trial court the most liberal construction the language will permit, to sustain a judgment found therein. (Eastwood v. Standard Mines etc. Co., 11 Idaho 195, 81 P. 382.)

The measure of evidence required to enforce a trust in mining claims under a parol agreement is laid down by this court in Morrow v. Matthew, 10 Idaho 423, 79 P. 196; and the evidence in such case must be clear and satisfactory; and the court in that case say on page 201: "Evidence entirely clear and convincing to the trial court, who saw and heard the witnesses, might, when in cold type upon the record, leave doubts in the minds of the members of the appellate court; but I do not think they should reverse the judgment on such grounds." An application for a new trial for newly discovered evidence is regarded with suspicion. (14 Ency. of Pl. & Pr. 790 et seq.)

Where the issue upon a petition for a new trial on the grounds of newly discovered evidence is tried by the court, and there is evidence to support the finding of the court, the appellate court will not disturb the finding upon the weight of the evidence. (Richardson v. Penny, 14 Okla. 591, 78 P. 320.) Action of trial court on a motion for a new trial, on ground of newly discovered evidence, or insufficiency of evidence, will not be disturbed on appeal, unless there was abuse of discretionary power. (Case v. Cramer (Mont.), 85 P. 878; In re Colbert's Estate, 31 Mont. 461, 107 Am. St. Rep. 439, 78 P. 981, 80 P. 248; People v. De Masters, 109 Cal. 607, 42 P. 236.)

Before a new trial for newly discovered evidence, there must be a clear showing that by reasonable diligence it could not have been procured before the trial. (Cudahy Packing Co. v. Hayes (Kan.), 85 P. 811; In re Colbert's Estate, 31 Mont. 461, 107 Am. St. Rep. 439, 78 P. 781, 80 P. 248; Fleisheim Mer. Co. v. Gillespie, 14 Okla. 143, 77 P. 183; Armstrong v. Aragon (N. Mex.), 79 P. 291.)

Newly discovered evidence, which is merely cumulative on part of the case, is not ground for new trial. (Shannon v. City of Tacoma, 41 Wash. 220, 83 P. 186; State v. Lackey, 72 Kan. 95, 82 P. 527.)

Cumulative evidence is not sufficient. (Patterson v. San Francisco etc. Ry. Co., 147 Cal. 178, 81 P. 531; Wood v. Moulton, 146 Cal. 317, 80 P. 92, and cases there cited.)

The last case cited lays down the additional proposition that evidence merely designed to contradict witnesses is also not sufficient.

"Motion for new trial on newly discovered evidence is not to be granted unless the evidence makes it clearly probable that it will produce a different result on the retrial." (In re Colbert's Estate, 31 Mont. 461, 107 Am. St. Rep. 439, 78 P. 981, 80 P. 248; State v. Hayworth, 26 Utah 310, 73 P. 413.) We also cite the following Idaho cases on the above propositions: People v. Biles, 2 Idaho 114, 6 P. 120; State v. Hardy, 4 Idaho 478, 42 P. 507; State v. Davis, 6 Idaho 159, 53 P. 678; Knollin v. Jones, 7 Idaho 466, 63 P. 638.

SULLIVAN, J. Stockslager, C. J., and Ailshie, J., concur.

OPINION

SULLIVAN, J.

This suit was brought to recover a two-thirds interest in the South Fork, Nos. 2 and 3 mining claims, situate in Elk City mining district, Idaho county, and for an accounting by the respondent for the ore extracted from said claims. It was alleged and claimed by appellants that a prospecting partnership for the location of mining claims was entered into between appellants and the respondent, and that during the existence of that partnership said mining claims were located. The cause was tried by the court without a jury and judgment was entered against the appellants and in favor of the respondent. Motion for a new trial was...