First Nat. Bank of Poteau v. Moniot , 50 Okla. 85 ( 1915 )

The garnishee admits in its argument in its brief "that if there is any evidence whatever to support the verdict returned by the jury, the judgment should not be reversed, as the law is well settled that the Supreme Court will not weigh the evidence." Consequently, the only question necessary for us to consider is whether there is any evidence tending to show that the ownership of the proceeds of the draft was vested in John London. The draft, and letter of advice to the garnishee accompanying same, shows that John London was the owner of the proceeds of the draft, especially in view of the fact that the consideration of the draft was a deed from John London to H.J. Fowler, who paid the draft, which deed was attached to the draft. The testimony of Pyle that the draft was paid him by London for an indebtedness due him (Pyle) by London, which was evidenced by a promissory note, and said note from London to Pyle not being produced in evidence and the further testimony of Pyle "that when the draft was forwarded to the garnishee for collection, it was the property of the Day Night Bank," coupled with the fact that the testimony of John London was not offered in evidence, nor its absence accounted for was reasonable to induce the jury to believe that the ownership of the proceeds of said draft, as shown by the face thereof and the accompanying letter of advice, was not overcome by the evidence of Pyle, or any evidence in the case; and, in reaching their conclusion, the jury may properly have presumed that had John London's evidence been offered, it would have been unfavorable to the contention of Pyle that the ownership of the proceeds of the draft was in the Day Night Bank.

"When it lies within the power of a party to an action to produce evidence upon an issue, and he fails, the presumption follows that the evidence, if produced, would be unfavorable to the cause of such party." (Moore v. Adams et al., 26 Okla. 48,108 P. 392.)

We are forced to the conclusion that there was evidence tending to support the verdict rendered, and that the judgment of the trial court should be affirmed.

By the Court: It is so ordered.