Hibler v. Smith

• Decision Date: 14 November 1911
• Citation: 119 P. 41,20 Idaho 590
• Parties: G. F. HIBLER et al., Respondents, v. GRANT SMITH et al., Appellants
• Court: Idaho Supreme Court

119 P. 41

20 Idaho 590

G. F. HIBLER et al., Respondents, v. GRANT SMITH et al., Appellants

Supreme Court of Idaho

November 14, 1911

SUFFICIENCY OF EVIDENCE TO SUPPORT JUDGMENT.

(Syllabus by the court.)

1. Evidence examined and held sufficient to support the verdict and judgment as to the first three causes of action, and insufficient to support the judgment as to the fourth cause of action.

APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. Robert N. Dunn, Judge.

Action for debt. Judgment for plaintiff. Defendants appeal. Affirmed as to first three causes of action, and reversed as to fourth cause of action.

Judgment affirmed as to the first three causes of action and reversed as to the fourth cause of action, and case remanded with direction. Costs of appeal equally divided between appellants and respondents.

McBee &amp La Veine, and Chas. L. Heitman, for Appellants

The evidence fails to disclose any cause of action at the beginning of this suit. (Pomeroy, Code Remedies, secs. 453 775; Veeder v. Baker, 83 N.Y. 156; Lawson v Tripp, 34 Utah 28. 95 P. 520; Bach v. Brown, 17 Utah 435, 53 P. 991; Thompson v. Bradbury, 5 Idaho 760, 51 P. 758.)

In the fourth cause of action the collection of the price of the cars and rails is not even alleged. Plaintiffs do not pretend that they have ever paid for same and offer no evidence to that effect. In finding for plaintiffs on this cause, the jury wholly ignore the uncontradicted testimony of three witnesses. (1 Spelling, New Trial and Appellate Practice, p. 420; Chicago, B & Q. R. R. Co. v. Landaner, 36 Neb. 642, 54 N.W. 976; Michaud v. Freischeimer, 16 Mont. 472, 41 P. 231; Cunningham v. Gans, 29 N.Y.S. 979, 79 Hun, 434; Homire v. Rodgers, 74 Iowa 395, 37 N.W. 972.)

"When a party alleges a material fact, and offers no evidence in support of it, the court is authorized, if denied, to find its nonexistence." (Miller v. Engle, 3 Cal.App. 325, 85 P. 159.)

The burden of proving the allegations by a preponderance of the evidence was on plaintiff, and if he failed to do so or if the evidence was equally balanced, he could not recover. (John Ainsfield Co. v. Rasmussen, 30 Utah 453, 85 P. 1002.)

J. L. McClear, for Respondents.

There is a conflict as to all the evidence in this case; the court heard the evidence, saw the witnesses upon the stand, submitted the case to the jury under proper instructions, and the case of Say v. Hodgin (Ida.), 116 P. 410, and Wolfe v. Ridley, 17 Idaho 173, 104 P. 1014, with a long line of decisions of this court, hold that the court does not err in refusing to grant a new trial where there is such conflict.

AILSHIE, J. Stewart, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

In this case the plaintiffs sued on four causes of action. Defendants admitted the first cause on action, and made a tender into court of the amount due.

It is claimed on this appeal that the evidence is not sufficient to support the verdict and judgment...