Fulton v. Earhart

By the Court, Upton, J.: The cause was first before the Court on a motion to dismiss the appeal, on the ground that there is no error assigned which is reviewable by this Court. On that motion the following opinion was expressed: The first and third assignments simply assert that the Court erred in determining the preponderance of evidence. This is not an error of law. If there is no evidence tending to support a finding, and it so appears by the record, that may be a matter to be reviewed, but a finding of fact is not open to review simply on a question as to the preponderance of evidence. (Civ. Code, § 533; Borst v. Spelman, 4 Comst. 284; Western v. Genesee M. Ins. Co., 2 Kern. 258; Dain v. Wychoff, 18 N. Y. 46.) The statute in regard to what shall be reviewed in actions at law is no innovation upon the practice at common law. The rule is similar to that; the common law applies on writs of error and on reviewing the verdict of a jury. If there is no evidence to support the verdict it will be set aside; but if the questions turn wholly upon the preponderance of testimony and there is no other error complained of, the verdict will not be disturbed. Even when there may be ground for setting aside a finding or verdict, an appellate Court will proceed with caution where no motion was made in the .Court below for a new trial. The fifth and sixth assignments point to no particular ruling or action of the Court. It is not sufficient to declare that a judgment is erroneous, but the statute (Civ. Code, [64] § 527) requires that the certificates of the attorney should show that it is erroneous, “ and in ivhat particular.” The second and fourth specifications are sufficiently definite, and the cause cannot be dismissed for want of assignment of errors. We are not now inquiring whether the errors exist, but whether they have been assigned. If the allegations of the complaint are fullyTproved and there is no conflict of evidence, it is an error of law to find the contrary, and the second assignment is sufficient to raise the question. The same is true of the fourth assignment. If the proof did agree with the allegations' of the complaint and the Court held the contrary, it was error, and is well assigned. For the above reasons the motion to dismiss the appeal was overruled, and the cause is now submitted on its merits. The appellant claims that by the admissions of the pleadings the plaintiff is entitled to a judgment for $166.16, unless the defendant has proved that he paid that amount; and he claims that there was no evidence tending to show such payment. There is a fault in this position. It disregards the rule that every intendment is in favor of the regularity and correctness of a judgment of a Court having jurisdiction. The record brings before us some of the evidence adduced on the trial, but there is nothing in the record to show whether or not all the evidence is before us. The law will presume there was evidence to support a finding unless the contrary affirmatively appears. (White v. Abernethy, 3 Cal. 426; Nelson v. Lemmon, 10 Cal. 49.)