O'Toole v. Melander

• Decision Date: 05 April 1888
• Docket Number: Civil 236
• Citation: 2 Ariz. 392,17 P. 564
• Parties: DANIEL O'TOOLE, et al., Plaintiffs and Appellants, v. JOHN MELANDER, et al., Defendants and Appellees
• Court: Arizona Supreme Court

17 P. 564

2 Ariz. 392

DANIEL O'TOOLE, et al., Plaintiffs and Appellants, v. JOHN MELANDER, et al., Defendants and Appellees

Civil No. 236

Supreme Court of Arizona

April 5, 1888

APPEAL from a Judgment of the District Court of the First Judicial District in and for the County of Cochise. Wm. H. Barnes Judge.

Affirmed.

Ben Goodrich, for Appellants.

Herring & Herring, (Thomas Mitchell, of counsel,) for Appellees.

The only question in this case was whether the work or improvement required by this law had been done for or by the plaintiffs for the year 1885. This naked question of fact was submitted to a jury and was found in our favor, and thereupon the plaintiff's complaint was dismissed by the Court.

This was not an action of ejectment, but an action to quiet title which under our practice is treated as a bill in equity. Brandt v. Wheaton, 52 Cal. 430. A verdict of a jury in such a case is merely advisory, and hence an appellate court will never consider the question--whether the verdict was right, or whether the court ought or not to have disregarded it, or whether he ought to have granted a new trial of the issue by the jury. Bates v. Gage, 49 Cal. 126. But we submit that under any system of practice where the evidence was oral, the reason of the thing would forbid the appellate court to disturb the finding or verdict unless it affirmatively appears that the finding or verdict was clearly unsupported by any evidence.

The learned judge at the trial was not bound by the rules which govern at common law. The object of a verdict in a chancery case is, to advise the court and satisfy his conscience; and hence the court will often direct the issue to be tried over again, if his conscience is not thoroughly informed, in cases in which at law a new trial would be refused. Daniel Ch. P. p. 1120-21 (5 ed. p. 1073.) Or, if satisfied that the verdict is wrong, he may disregard it entirely, and in entering the decree find the fact as he thinks the evidence requires him to. Basey v. Gallagher, 20 Wall. 679. In the present case the trial Judge was urged to do this, and was thoroughly advised in the premises, but he adopted the finding of the jury and dismissed the plaintiffs' action.

Wright, C. J., and Porter and Barnes, Jj., concur.

OPINION

The facts are stated in the opinion.

PER CURIAM.

The only question arising in this cause is whether or not the assessment work of $ 100, required by the act...