02 CASES IN THE SUPREME COURT [27 Ark. Smith & Bro. -v. Van Gilder, Adna'•. [DEcEnimm SMITH & BRO. v. VAN GILDER, Adm'r. VEamcr---When not disturbed.—The verdict of a jury, or the finding of facts by the court trying the case, sitting as a jury, will not he disturbed unless the same be without evidence to support it. APPEAL FROM ASHLEY CIRCUIT COURT. HON. HENRY B. MORSE, Circuit Judge. Johnston & Hawkins and Waticins 4. Rose, for Appellanth. . J. W. Van Gilder, for Appellee. SEARLE . J.—Th'e issues in this aetion were tried in the court , below by the court sitting : as a jury. Finding and . judgment Vere :f o• the defendant, from which plaintiffs :appealed •to this cOutt. The motion _for a new :trial was upon the following grounds: First. .-Thdt the. court refused to declare rcertain propositions of law, tasked by the plaintiffs to be declared as the law .of the (cast. 'Seco-cd. 'That the 'verdict and judgment of the court were 0ntilaq to the law . rand eVidence. As to the first ground for a motion for a new trial, 'we haVe but a word to •say. The couit declared a 'number Of litOpositions of kW, which, taken 'together, • fully comprehended the :substance r of What was . contained in the propositions of law refused. No prejudice, therefore, 'could result Ittrn the reinsal tif the latter. The prepositions of law
27 Arki OF THE STATE OF ARKANSAS. 593 TERM, 18721 Smith & Bro. v. 'Van Gilder: Adm'r. declared seem to comprehend fully the law of the case.. So the appellants can have no cause for Cemplaint upon this first ground fOr their motion for a new trial, by the same being overruled. We will now consider the second ground for the motion for a new trial, namely, that the verdict and judgment of the court were contrary to the law and the . evidence. This we will take to mean, as was doubtless intended, that . the finding of the facts by the court, sitting in the trial of the case, as a jury, was contrary to the law and the evidence. It appears that . the Niriting sued upon, as evidence of indebtedness, was executed by Kittrell & Co., and it is contended, by appellants, that D. L. Evans, of whose estate the appellee is administrator, was a partner of the firm when the smile was executed, or at least held himself out as such, which fact induced the appellants to give credit to the writing sued upon, and accept the same. The main question of fact for the court, as a jury, to find, was, as to whether Evans was a partner in 'said firm, or held himself out as • a • member of the firm, • thereby giving the firm credit, by which the obligation accrued, I as upon this depended his liability or tho liability of his estate to satisfy the note sued upon. The court found, a g the facts in the premises: First. That Evans was not a partner in said firm. • Second. That he did not hold himself out by words or acts, as a partner, either , open or secret, of the firm, or as in any manner connected or interested iri the business of the firm., Was this finding contrary to the . evidence ? We have carefully examined the evidence an& though we find it very conflicting, the finding of the . couit was not without foundation. We are not, therefore, disposed to disturb it: For the well known rule that the verdict of a jury will not be disturbed, unless the same be without evidence to support it, will apply to the finding of facts by a court trying the case, sitting as a jury, to the same extent and for the same reasons. The finding of facts, by a court, net being again:st the evidence, 27 Ark.-38
594 CASES IN THE SUPREME COURT [27 Ark., [DECEMBER is neither against the law, as the law was correctly declared. The opinion of this court is, therefore, that there was no error in the proceedings and judgment of the • court below, and the judgment must be affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.