Hightower v. Hightower , 236 S.W. 197 ( 1921 )

The judgment is attacked on the ground alone that it was not warranted by the evidence. It is not contended that the balance of the account in the bank in the name of Eddie's Café did not belong to the community estate between the parties at the time that account was closed, nor is it contended that the sums afterwards deposited for credit on that account did not belong to said estate. The contention is that it conclusively appeared that appellee gave said balance and the sums so deposited to appellant, or if it did not conclusively appear that he did so it appeared from a preponderance of the testimony that he gave same to her. The evidence as to gifts claimed, aside from that showing the new account opened with the bank to have been carried in appellant's name, consisted alone of testimony of appellant that appellee gave her the balance of the closed account and testimony of appellee that he did not give it to her. Of course, it is not contended that the court did not have a right to resolve the conflict in that testimony in appellee's favor. The contention seems to be that, while he had that right, he did not have a right to treat appellee's testimony as sufficient to overcome the presumption created by Act March 21, 1913 (General Laws 1913, p. 61; art. 4622, Vernon's Statutes). The provision invoked in the act referred to is as follows:

"Any funds on deposit in any bank or banking institution, whether in the name of the husband or the wife, shall be presumed to be the separate property of the party in whose name they stand, regardless of who made the deposit, and unless said bank or banking institution is notified to the contrary, it shall be governed accordingly in honoring checks and orders against such account."

If the presumption created by the statute was not an irrebuttable one — and we do not think it was — the contention should be overruled; for if it was rebuttable the trial court, as the judge (trying the case as he did without a jury) of the credibility of the witnesses and weight to be given the testimony before him, had a right to conclude, as the judgment shows he did, that the presumption was sufficiently rebutted by the testimony of appellee referred to in the statement above. The rule on appeal is that where there is testimony to support a finding it will not be set aside because contrary, in the opinion of the appellate court, to a mere preponderance of the testimony. In such a case the testimony must be so overwhelmingly against the finding "as to suggest prejudice or bias or other improper motive on the part of the trial judge." Traction Co. v. Arnold, 211 S.W. 275; and see Deaton v. Hamilton County, 220 S.W. 577; Smith v. Coburn, 222 S.W. 344; Jobe v. Patton, 222 S.W. 987; Gordon v. Gordon, 224 S.W. 716; Jones v. Fink, 209 S.W. 777. It is not pretended that the testimony to the contrary of the trial court's finding was of that nature.

The judgment is affirmed.