Reay v. Butler

Citations

• 95 Cal. 206
• 30 P. 208
• 1892 Cal. LEXIS 802

Syllabus

<p>Appeal — Review op Conflicting Evidence — Depositions — Oral Examination of Witness. — The fact that upon the second trial of a cause a large part of the testimony taken at the first trial was read without recalling the witnesses, and two or three depositions were introduced, does not warrant the appellate court in drawing its own conclusions from conflicting evidence, and disregarding the conclusions reached by the trial judge, where two or three witnesses, including the plaintiff himself, whose former testimony was read, were re-examined, and many others were examined whose testimony was to a large extent important and material. * ^</p> <p>Id.—Reasons of Rule as to Review of Evidence — Appellate Jurisdiction. — The rule that this court will not review the finding of a jury or of a court as to a fact decided upon the weight of evidence is not adopted merely because the court below has the opportunity to observe the appearance and bearing of the witnesses, but is founded in the essential distinction between the trial and appellate courts under our system, and grows out of consideration of jurisdiction, that it is the province of the'trial court to decide questions of fact, and of the appellate court to decide questions of law, and that this court can rightfully set aside a finding for want of evidence only where there is no evidence to support it, or where the supporting evidence is so slight as to show an abuse of discretion.</p> <p>Id. — Review of Written Evidence — Conflicting Evidence.—The appellate court will look more closely into the evidence when it consists entirely of depositions, affidavits, or notes of former testimony; hut it cannot he taken as settled that in such a case the rule as to conflicting evidence does not apply.</p> <p>Possession of Land — Inclosure of Exterior Boundaries of Two Tracts Held in Severalty — Trespass — Contest of Possessory Rights. — If two owners in severalty of adjoining tracts of land by mutual consent inclose the two trac