Tracy v. Hartman — 1 Hilt. 350

Majority

p. 350

Edward Tracy, assignee of James Wiley, v. Herman Hartman.

Headnote

This court will not interfere, on appeal, with the finding of a justice, unless it is such an obvious disregard of the weight of evidence as to create a conviction that it must have proceeded from passion, prejudice, corruption, or palpable mistake.

The justice returned that the testimony of two of the defendant’s witnesses was given in a manner to deprive it of any weight, and this court refused to disturb the judgment, although, from the testimony returned, it probabty would come to a different conclusion as to the facts from that arrived at by the justice.

Appeal by defendant from a judgment of the Second District Court.

The action was .brought to recover for ale sold and delivered to the defendant by the plaintiff’s assignor. The sale and delivery, and amount due therefor, were proved by the testimony

p. 351

of tbe plaintiff’s assignor, corroborated by that of D. 0. Fuller. On tbe part of tbe defendant two witnesses were called, whose testimony tended to sbow tbat tbe quantity delivered was less than claimed by plaintiff, and tbat defendant paid cash for all ale purchased.

Tbe justice rendered judgment for tbe plaintiff, assigning as a reason, in bis return, tbat, as the téstimony was presented to him, be thought tbat of tbe plaintiff’s assignor, corroborated as it was, entitled to greater credit than tbat of defendant’s witnesses.

George Carpenter, for tbe appellant.

Stillwell and Swain, for tbe respondent.

We have repeatedly held, tbat where the testimon^ is conflicting we will not interfere with tbe finding of tbe j'ustice, unless -we can come to tbe conclusion that tbe finding is such an obvious disregard of tbe weight of evidence as to create conviction in tbe mind of tbe appellate court tbat it must have proceeded from passion, prejudice, corruption, or palpable mistake. Such is not tbe present case. It was a case of contradictory testimony, involving tbe relative credibility of witnesses, a question which tbe justice, before whom tbe witnesses testified, was alone competent to pass upon. He has returned tbat tbe conviction made upon bis mind was, tbat tbe testimony of tbe plaintiff’s assignor was more reliable than tbat of tbe defendant, and tbat tbe testimony of two of tbe defendant’s witnesses was given in a manner to deprive it of any'weight. In such a case we will not interfere. We might, from tbe testimony as it is returned to us, draw a different conclusion, as to tbe facts, from tbat drawn by tbe justice, but tbat would not warrant us in reversing bis judgment. Tbe tribunal, whether it be a judge or a jury, before whom a question of fact is tried, upon conflicting testimony, is tbe one most competent to pass upon it; and a conclusion arrived at by such a tribunal is not to be disturbed, unless in case of obvious mistake, passion, prejudice, or corruption.

Judgment affirmed.