Victoria Copper Mining Co. v. Haws

BlacKburn, J.: The abstract in this case is very imperfect. The names of the parties defendant are not set out. It does not purport to be an abstract of all the evidence given at the trial. It assigns errors in the findings of fact by the trial court by numbers, without setting out the findings. It only gives the findings as a whole, without designating them by numbers. The purpose of an abstract of the record is to enable the court of appeals to decide the case without the labor of the examination of a voluminous record. This abstract only increases, instead of lessening, the labor of the court. This suit was brought to recover the possession of two mining claims, the Copper the Ace, and the Antietam, and for damages, and was tried by the court without a jury, a jury being waived. The court found for the plaintiff company, and rendered judgment accordingly. The defendants made a motion for a new trial, which was overruled, and defendants appealed both from the order overruling the motion for a new trial and the judgment, and assigned many reasons for reversing the judgment, to-wit, errors of law, in this: that improper, irrelevant, immaterial, and incompetent evidence was heard by the court, some of which was admitted subject to the objections, and to some the objections were overruled. When the judge tries a case without a jury, it is not a reversible error to admit [517] incompetent, irrelevant, or immaterial evidence;. for be decides the case on the proper testimony only, and disregards entirely that which is incompetent, irrelevant, and immaterial. When a clear preponderance of competent, relevant, and material evidence supports the findings, this court will not reverse because of errors of the court below in admitting incompetent, irrelevant, or immaterial evidence, for the presumption in such case is that it was wholly disregarded. Insurance Co. v. Friedenthal, (Colo.) 27 Pac. Rep. 88. This disposes of all the exceptions taken to the reception of evidence claimed to be improper. We have carefully looked through the record, and considered all the evidence, and although we are not entirely satisfied with the findings of the trial court, yet we cannot say as a matter of law that they are wrong. There is enough evidence in the record, if true, to support the findings and judgment. It is very contradictory, and we think the trial judge, who saw the witnesses on the stand, and noticed their manner and bearing, and doubtless attended closely to all the surroundings, is better qualified to judge of what testimony is truthful than this court, who have only an imperfect abstract of it ini the record. One witness testifies in detail to all the cir-' cumstances of locating the claims, and, if what he says he did was really done, the location of the claim was complete. The defendant Haws looked for stakes after-wards, but did not find any, and so said several witnesses. But Haws quit work for the plaintiff company on the claims a very few days before he attempted to relocate them, and it is not at all improbable that a man who will not see stakes when he is looking for them, will deliberately undertake, while in his pay, to appropriate his employer’s property to his own use. Again, it is not disputed that the defendant Haws took possession of the [518] property, and ousted the plaintiff, while its agents were actually working on the claims. We do not think we ought to reverse the judgment, because, it is alleged, it is not supported by the evidence; because we think that a clear preponderance of the evidence does support it. A further view of the evidence would be profitless. Another contention of the defendants is that the court, in this case, during the progress of the trial, received certain evidence subject to the objections of the defendants, and did not afterwards specifically rule upon these objections, and left the contestants in doubt as to whether he considered such evidence in making his judgment. Many authorities are cited in support of this contention. It is fully supported by Californian authorities, but no other is cited in its support. This question need not be passed upon in this case, for*, the neglect. to decide each of the objections made to the testimony would and could not have changed the result. And if it was error in this case it was harmless, for which an appellate court will not reverse; for, if the trial court believes the competent evidence, unobjected to, introduced by the plaintiff, he must have decided as he did, and it could make no difference which way he decided the question of the admissibility of the evidence objected to. We see no error in the record that justifies a reversal. Therefore the judgment is affirmed. Zanu, C. J., and MINER, J., concurred.