Calhoun v. Gilliland

Opinion by Wingard, Associate Justice. This action was brought by the plaintiff to recover a balance claimed to be due to him from the defendants on an account. The defendant answered by a general denial of all the allegations of the complaint as to the account, and then set up a counter claim for wages earned by Robert Kennedy, deceased, and claimed a balance in his favor. The cause was, by stipulation, tried by the Court, the evidence having been taken by a referee. The Court having filed his findings of fact, giving a balance in favor of the defendant, a motion for a new trial was filed; upon which the Court set aside his findings of fact, and replaced them by new findings, [176] whereby a balance was found due to the defendant of less amount than was found before amendment. This is complained of by plaintiff in error. No new trial was granted, but the Court only found a different amount to be due to the defendant, and which was less than the first amount found to be due to him, and therefore more favorable to ,the plaintiff. No authorities need be cited in support of this' action of the Court. It was not erroneous. The Court did not find for the defendant an amount in excess of his counter claim. After a careful review of the testimony, we are not prepared to say that the Court erred in its findings of fact. The judgment of the Court below is affirmed.