Heckman v. Espey , 12 Idaho 755 ( 1906 )

SULLIVAN, J.

This suit was brought to recover a two-thirds interest in the South Fork, Nos. 2 and 3 mining claims, situate in Elk City mining district, Idaho county, and for an accounting by the respondent for the ore extracted from said claims. It was alleged and claimed by appellants that a prospecting partnership for the location of mining claims was entered into between appellants and the respondent, and that during the existence of that partnership said mining claims were located. The cause was tried by the court without a jury and judgment was entered against the appellants and in favor of the respondent. Motion for a new trial was made, and the grounds for such motion were insufficiency of the evidence to support the findings of the court and newly discovered evidence. Said motion was overruled, and the appeal ■is from the judgment and the order overruling the motion for a new trial.

Only two questions are presented on this appeal, and the first is the insufficiency of the evidence to support the findings of the court, and the second whether the court erred in overruling the motion for a new trial on the ground of newly discovered evidence. We have gone through the evidence very carefully and we find that there is a substantial conflict in it. That being true, the well-established rule applies that where there is a substantial conflict in the evidence, the appellate court will not reverse the judgment of the trial court. The affidavits of newly discovered evidence are mostly cumulative and corroborative, and we are unable to see that the court abused its discretion in denying a new trial on the ground of newly discovered evidence.

The judgment must, therefore, be affirmed, and it is so ordered. Costs are awarded to the respondent.

Stoekslager, C. J., and Ailshie, J., concur.