Loomer v. Walker , 59 Okla. 44 ( 1916 )

This appeal is from a judgment of the district court of Carter county rendered in an action therein pending to recover a balance alleged to be due on a promissory note. At the trial of the case the outcome of the suit depended entirely on an issue of fact raised by the evidence as to whether certain checks which were offered in evidence should have been applied toward the payment of the note sued on, or to the payment of another note which defendant claimed had been previously paid, but which claim was disputed by the plaintiff. There was evidence in the case reasonably tending to sustain both contentions. The case was tried by the court, a jury having been waived, and upon weighing the conflicting evidence the finding and judgment of the court was for the defendant and against the plaintiff, from which judgment, after a motion for a new trial had been filed and overruled, the case was appealed to this court.

No error is urged except that the judgment was not sustained by the evidence. It is a well-established rule in this jurisdiction that where the only error assigned on appeal in a law case, tried to the court, is that the evidence was insufficient to support the judgment, the supreme court will not weigh the evidence, but if it be found that there was any evidence reasonably tending to support the judgment, it will be affirmed. Postoak v. Lee, 46 Okla. 477, 149 P. 155, and numerous other cases digested in secs. 1010 and 1011 under the title of Appeal and Error, Oklahoma Cumulative Digest.

There being evidence in this case reasonably tending to support the judgment of the trial court, the judgment should be affirmed; and it is so recommended.

By the Court: It is so ordered.