Thurber v. Stimmel — 2 Silv. Ct. App. 547

Majority

p. 547

Francis B. Thurber, et al., Respondents, v. John Stimmel, Appellant.

Court of Appeals,

February 25, 1890.

Headnote

Affirming 48 Him, 620, Mem.

Appeal. Findings.—Where there is evidence sufficient to sustain the findings of the court below, though some of it may partake of the character of conclusions of the witness, the court of appeals cannot decide upon its credibility.

p. 548

Appeal from a judgment of the general term of the su- . preme court, affirming a judgment entered upon the decision of the court.

Abner C. Thomas, for appellant.

E. More, for respondents.

The facts stated by the judge clearly warrant his conclusion of law in favor of the claim of the plaintiffs. The only question for us is to inquire whether there is any evidence in the case upon which the findings can be based. A careful perusal of the evidence brings us to the conclusion that there is. Some of the testimony might perhaps, be said to partake of the character of conclusions of the witness, but there is evidence which, if believed, is sufficient to show that the mortgage in Lane’s hands was paid down to S3,500 when he assigned it to defendant, and that the latter took it as a valid lien for that amount only. We cannot decide upon its credibility. It may be that the defendant has not secured what he thought he was obtaining when he took the assignment of the mortgage, but, in the face of the evidence and of the findings of the court below, we can give him no relief.

The judgment must be affirmed, with costs.

All concur.