Moyle v. Hocking

• Decision Date: 13 December 1897
• Citation: 10 Colo.App. 446,51 P. 533
• Court: Colorado Court of Appeals
• Parties: MOYLE v. HOCKING.

51 P. 533

10 Colo.App. 446

MOYLE v. HOCKING.

Court of Appeals of Colorado

December 13, 1897

Error to Gilpin county court.

Action by Nicholas Moyle against Hannah Hocking, administratrix of the estate of Alfred Hocking, deceased. From a judgment for defendant, plaintiff brings error. Reversed.

W.C Fullerton, for plaintiff in error.

J. McD. Livesay, for defendant in error.

WILSON J.

This suit was originally begun before a justice of the peace hence there are no written pleadings. As we gather from the record, the action was to recover a sum alleged to be due to plaintiff for wages earned by him as a minor while in the employ of Alfred Hocking. The justice rendered judgment in favor of defendant. An appeal was taken to the county court. While suit was there pending, the defendant died, and his administratrix was substituted as a party. Trial to the court was had, and judgment was again rendered for defendant. The principal error assigned is that the finding and judgment were not supported by the evidence.

On the trial, only one witness was produced. He testified that he was present when the defendant, Hocking, employed the plaintiff, heard him agree to pay plaintiff $2.50 per day for his work, and knew that the plaintiff worked 34 days. There was no evidence whatever offered on behalf of defendant. In support of the judgment defendant relies wholly upon the rule, repeatedly announced and sustained by this court, that, where the evidence is conflicting, appellate courts will not disturb the verdict of the jury or findings of fact by the trial court unless manifestly against the evidence. If sufficient evidence appears to sustain such finding or verdict, it will be conclusively presumed that it was sustained by the weight of the evidence. This rule is well settled, but it is not applicable to the case at bar. Here there was no conflict at all in the evidence. All of it was in favor of plaintiff, and there is none whatever to support the judgment. The employment, at a stipulated rate of wages, and the rendition of the services, having been shown, a prima facie case was made in favor of plaintiff. The burden was then upon defendant to show payment or anything else which might go towards the reduction or extinguishment of the claim. This was not even attempted. Railroad Co. v. Wilson, 4 Colo.App 356, 36 P. 67. There was nothing which tended to overcome or weaken the force of the unimpeached...