Heckman v. Espey

Prospecting Partnership — Insufficiency of Evidence — Substantial Conflict — -Newly Discovered Evidence- — Cumulative and Corroborative — Discretion of Trial Court. 1. Where there is a substantial conflict in the evidence, the findings of the trial court will not be disturbed. 2. The granting of a new trial is largely in the discretion of the trial court, and when based on affidavits of newly discovered evidence that are only corroborative and cumulative of the evidence introduced on the trial, the decision of the court on the motion for a new trial will not be disturbed. (Syllabus by the court.)

APPEAL from the District Court of Second Judicial District for Idaho County. Hon. Edgar C. Steele, Judge. Action to establish prospecting partnership. Judgment for defendant. Where evidence is conflicting, and the lower court has decided such conflicting issues of fact, the appellate court will not disturb the flndings of the lower court; the courts of all the states are in accord on this doctrine; and this court has repeatedly so held. (Deeds v. Stephens, 10 Idaho, 332, 79 Pac. 77; Robertson v. Moore, 10 Idaho, 115, 77 Pac. 218; Abbott v. Reedy, 9 Idaho, 577, 75 Pac. 761; Gowden v. Finney, 9 Idaho, 619, 75 Pac. 765; Gowden v. Mills, 9 Idaho, 626, 75 Pac. 766.) On verdict on conflicting evidence, see Simpson v. Remington, 6 Idaho, 681, 59 Pae. 360; Bonner v. Powell, 7 Idaho, 101, 61 Pae. 138; Kendriclc, State Bank v. Northern Pac. Ry. Co., 10 Idaho, 483, 79 Pae. 457; Spencer v. Morgan, 10 Idaho, 542, 79 Pae. 459; Gumaer v. White Pine Lumber Co., 11 Idaho, 591, 83 Pae. 771; Turmes v. Kiesner (Idaho), 85 Pac. 212. The appellate court will give the finding of the trial court the most liberal construction the language will permit, to sustain a judgment found therein. (Eastwood v. Standard Mines etc. Co., 11 Idaho, 195, 81 Pac. 382.) The. measure of evidence required to enforce a trust in mining claims under a parol agreement is laid down by this court in Morrow v. Matthew, 10 Idaho, 423, 79 Pac. 196; and the evidence in such ease must be clear and satisfactory; and the court in that case say on page 201: “Evidence entirely clear and convincing to the trial court, who saw and heard the witnesses, might, when in cold type upon the record, leave doubts in the minds of the members of the appellate court; but I do not think they should reverse the judgment on such grounds.” An application for a new trial for newly discovered evidence is regarded with suspicion. (14 Ency. of PI. & Pr. 790 et seq.) Where the issue upon a petition for a new trial on the grounds of newly discovered evidence is tried by the court, and there is evidence to support the finding of the court, the appellate court will not disturb the finding upon the weight of the evidence. (Richardson v. Penny, 14 Okla. 591, 78 Pac. 320.) Action of trial court on a motion for a new trial, on ground of newly discovered evidence, or insufficiency of evidence, will not be disturbed on appeal, unless there was abuse of discretionary power. (Case v. Cramer (Mont.), 85 Pac. 878; hi re Colbert’s Estate, 31 Mont. 461, 107 Am. St. Rep. 439, 78 Pac. 981, 80 Pac. 248; People v. De Masters, 109 Cal. 607, 42 Pac. 236.) Before a new trial for newly discovered evidence, there must .be a clear showing that by reasonable diligence it could not have been procured before the trial. (Cudahy Packing Co. v. Hayes (Kan.), 85 Pac. 811; In re Colbert’s Estate, 31 Mont. 461, 107 Am. St. Rep. 439, 78 Pac. 781, 80 Pac. 248; Fleisheim Mer. Co. v. Gillespie, 14 Okla. 143, 77 Pac. 183; Armstrong v. Aragon (N. Mex.), 79 Pac. 291.) Newly discovered evidence, which is merely cumulative on part of the case, is not ground for new trial. (Shannon■ v. City of Tacoma, 41 Wash. 220, 83 Pae. 186; State v. Lackey, 72 Kan. 95, 82 Pae. 527.) Cumulative evidence is not sufficient. {Patterson v. San Francisco etc. By. Co., 147 Cal. 178, 81 Pac. 531; Wood v. Moulton, 146 Cal. 317, 80 Pac. 92, and eases there cited.) The last case cited lays down the additional proposition that evidence merely designed to contradict witnesses is also not sufficient. “Motion for new trial on newly discovered evidence is not to be granted unless the evidence makes it clearly probable that it will produce a different result on the retrial.” {In re Colbert’s Estate, 31 Mont. 461, 107 Am. St. Eep. 439, 78 Pae. 981, 80 Pae. 248; State v. Hayworth, 26 Utah, 310, 73 Pae. 413.) We also cite the following Idaho eases on the above propositions: People v. Biles, 2 Idaho, 114, 6 Pac. 120; State v. Hardy, 4 Idaho, 478, 42 Pac. 507; State v. Davis, 6 Idaho, 159, 53 Pac. 678 -,Knollin v. Jones, 7 Idaho, 466, 63 Pac. 638.