McCann v. McCann , 24 Okla. 264 ( 1909 )

There was evidence introduced, pro and con, by both parties, tending to support the respective issues. It is a settled rule of this court that, where a cause is tried without the intervention of a jury, upon controverted questions of fact, and there is evidence reasonably tending to support the findings of the trial court, such findings will not be disturbed on the weight of the evidence, and when the finding is general, it includes all facts necessary to support the claims of the party in whose favor the judgment is rendered, and upon appeal this court will not review the evidence if it reasonably tends to support the issues upon which such finding is made, to determine the sufficiency thereof. Hunter Realty Co. et al. v. Spencer,21 Okla. 155, 95 P. 757; Lookabaugh v. Bowmaker, 21 Okla. 489,96 P. 651; Saxon v. White, 21 Okla. 194, 95 P. 783; Brewerv. Black, 5 Okla. 57, 47 P. 1089; Meyer Bros. Drug Co.v. Kelley, 5 Okla. 118, 47 P. 1065; Craggs et al. v. Earls,8 Okla. 462, 58 P. 637; Vandenberg v. Walton Lumber Co.,19 Okla. 169, 92 P. 149; Gaffney v. Cline et al., 19 Okla. 197,91 P. 855; Dunlap v. Stannard, 19 Okla. 232, 91 P. 845.

In the case of Knaggs v. Mastin, 9 Kan. 532 (2d Ed. 362), it is held that where testimony is oral and conflicting, and the finding by the court is general, such a finding is a finding of every special thing necessary to be found to sustain the general finding and that such general finding is conclusive upon the appellate court upon all doubtful and disputed questions of fact. See, also, to the same effect: Hobson v.Ogden's Ex'rs, 16 Kan. 388; Gibbs v. Gibbs, 18 Kan. 419;Winstead v. Standeford, 21 Kan. 270; Greer v. Greer,24 Kan. 106; Arn v. Hoerseman, 26 Kan. 415; Wilson v. Lightbody,29 Kan. 451; Buck Co. v. Panabaker Co., 32 Kan. 468, 4 P. 829.

In the case of Crane v. Choutea et al., 20 Kan. 288, the rule is announced, in an opinion by Mr. Justice Brewer, that:

"Where a case is tried by a court without a jury, and special finding of fact made, and those findings are based upon oral testimony, it is settled that in this court such findings are conclusive upon any disputed and doubtful questions of fact."

In the case of Lemon v. Fox, 21 Kan. 156 (2d Ed. 123), in another opinion delivered by Mr. Justice Brewer, the court said:

"The action was tried before the court without a jury. Special findings of fact were made, upon which the court rendered judgment in favor of the plaintiff, to reverse which judgment this proceeding in error is brought. The testimony was all preserved, and is in the record before us. The testimony is conflicting, and, where so conflicting, the findings of the court must be accepted as conclusive."

In the case of Wilson v. Lightbody, 29 Kan. 451 (2d Ed. 321), the court said:

"Where the trial court hears a motion to dissolve an attachment upon oral evidence, and upon such evidence makes a finding in favor of one of the parties and against the other, this court cannot ignore such finding nor reverse it, unless we can say as a matter of law that the finding is erroneous. If the evidence in such a case is conflicting and pretty evenly balanced, and sufficient evidence is introduced on each side of the case to sustain that side, provided the evidence on the other side be not considered, then the finding of the trial court is generally conclusive. In such a case we cannot retry the facts upon the evidence and determine upon which side the preponderance of the evidence exists. All that we can do is to look into the evidence to see whether there is sufficient evidence to sustain every ingredient of the finding of the court; or, in other words, to see whether there is such lack of evidence that we can say as a matter of law that the finding is erroneous. In the present case the evidence was such that a finding by the court on either side would be upheld."

See, also, to the same effect: Marbourg v. Lewis Cook Mfg.Co., 32 Kan. 629, 5 P. 181; Burtis v. Wait, 33 Kan. 478, 6 P. 783.

In this case there was competent evidence reasonably tending to support the issues on the part of the defendant, although, the preponderance thereof on some of the material issues may have been in favor of the plaintiff. Yet all of the evidence having been oral, and the trial court having had an opportunity to see the witnesses face to face, to observe their demeanor and manner of testifying, their frankness, candor, and sincerity, or want of such, their opportunity or want of opportunity to be conversant with the facts about which they gave evidence, and, in fact, to weigh under his personal scrutiny everything that goes to determine the fact of the credibility of the witnesses, under such circumstances this court will not invade the prerogative of the lower court, when there is competent evidence reasonably tending to support the issues, and set aside its findings.

It is further insisted that the trial court abused its discretion in not granting a continuance, in order that the plaintiff might procure witnesses to sustain her reputation as to truthfulness, etc. It appears that she resided at Lone Wolf, about 10 miles from the place of trial, and that the witness assailing her reputation also lived there. The motion was filed in the morning before the trial was concluded in the evening. The court, in ruling upon this motion, had a right to consider that one-half a day would intervene before the case would probably close, that the plaintiff had lived in that community for a number of years, that there were a number of parties from there attending on that trial, and in passing thereupon he exercised a discretion which will not be revised here, except when abused. Richardson v. Penny, 6 Okla. 328, 50 P. 231;McMahan v. Norick, 12 Okla. 125, 69 P. 1047; Butt v. Carson,5 Okla. 160 48 P. 182; Riddle v. Gage, 37 N.H. 519, 75 Am. Dec. 151; Texas Cent. R. Co. v. Brock, 88 Tex. 310,31 S.W. 500. If the testimony had been of a substantive nature, and necessary to support in chief an affirmative material issue, and it appeared that there was a surprise that could not, with proper diligence, have been foreseen, the court should have granted a continuance; but when the evidence is only of an impeaching nature, and relates solely to reputation, that is a matter more largely addressed to the discretion of the court, and its decision, as a rule, on such matters, will not be disturbed on review.

It is further insisted by the plaintiff in error that her rights were prejudiced by reason of the lower court arbitrarily refusing to hear any argument in support of her motion for a new trial. We have examined the record, and fail to find that it bears her out in this contention, and it is therefore not necessary to pass upon the same; it not so affirmatively appearing from the record.

It is further insisted by the plaintiff in error that the suggested amendments, including the findings of fact of the trial court, were neither made nor filed until after the final adjournment of the term of court, and for that reason should not be considered; but it is not necessary to determine that question in view of this record, for, whether we follow the rule as to a general finding or a special finding, the result in this case would be the same.

However, another serious question arises, and that is as to whether or not any valid order was made extending the time in which a case-made might be prepared and served. The order recites:

"Thereupon plaintiff's motion for a new trial is overruled, to which plaintiff excepts and exceptions allowed, and 60-10-5 is allowed for plaintiff to make and serve case-made."

It is a serious question as to whether or not this order can be deciphered and made intelligible enough to constitute an extension of time in which to make and serve the case-made; but, in view of the fact that this question has not been raised by the defendant in error, the same will not be determined in this case.

Failing to find any reversible error in the record, the judgment of the lower court is affirmed.

All the Justices concur.