Salt Lake City v. United Park City Mines Company , 28 Utah 2d 409 ( 1972 )

HENRIOD, Justice

(dissenting).

I dissent. The main opinion is not bottomed on the evidence in the record. It recites a very small portion thereof favorable to appellant, then says that because the trial court made an independent research and some charts, aided by his son who had access to a computer, there was reversible error. This is an equity case in which we examine the evidence in, not outside of the record. Use of such extrinsic evidence by the trial court may be error of some sort but is not ipso facto reversible error. I take it that even erroneous findings ipso facto would not constitute such error.

We have said that if believable evidence preponderates in favor of a party, he should enjoy the benefits of the judgment, albeit a wrong reason has been assigned therefor. This rule should apply irrespective of the trial court’s independent homework after the parties have rested. Such extracurriculum research should be ignored, if, but for such work, the evidence demands the same judgment.

The thrust of the main opinion seems to be that error is committed as soon as the trial judge indulged in book reading or research dehors the record, irrespective of the weight, credibility and sufficiency extant up to the time the case is closed. Anything else would seem to be surplusage and not dispositive according to the rules of review in equity cases.¹ In other words I think the only dispositive approach here is to read the record first. If a preponderance of the evidence supports the judgment, we shouldn’t bother to consider the reason for the judgment.

It appears to me that we have the cart before the horse in concluding that the trial court erred in considering something-outside the record and in forgetting that having the same obligation to examine the same evidence that he has to examine, we now prove ourselves guilty of the same sin by ourselves going outside of the record and reviewing the same evidence that we say convicted him, but acquits us.

The only justification for our decision here is insufficiency of the evidence reflected in the record at the time the parties rested. This is not assigned as the basis for the main opinion. It is bottomed on something dehors the trial, which we say was error if the trial court, indulging that course, presumes to base his decision thereon, — but not error if we indulge that course under identical circumstances. This would appear to be something akin to saying our reasoning is quite a palatable potion, but that of the trial court is peptic poison.

I suggest as guidelines to the next judge who will be faced with another 3000 pages, more or less, that his post-trial reading habits be confined to poetry, that he employ his spare time preparing Gallup polls, use a ball point pen rather than a computer, and by all means, never speak to his son again.

1 . Stanley v. Stanley, 97 Utah 520, 94 P.2d 465 (1939).