Canavan v. Paye

Opinion by

Rice, P. J.,

The learned trial judge has accurately and concisely epitomized the averments of the pleadings and the conflicting evidence in support of them and set forth his findings of fact and conclusions of law with clearness and precision. No useful purpose would be served by a restatement of the transactions out of which the controversy between the parties arose, and we shall not attempt it. Equity rule 67 provides that upon appeal in such a case as this such matters only shall be assignable for error as have been excepted to aud finally passed upon by the court as prescribed in the preceding rules governing the trial of cases in equity. Therefore, our discussion of the assignments of eri’or will be confined to the seven exceptions to the judge’s findings of fact, the exception to the refusal of the plaintiff’s application for an issue, and the exception to the refusal to grant a reargument.

The findings of fact excepted to áre not mere deductions from other facts, but are based almost wholly upon direct testimony whicli is not inherently improbable and was given by witnesses who were not more deeply interested in the result than those who testified, to the contrary. Even though the burden of proof as to some, of the matters in dispute was on the defendants, it cannot be declared from an examination and analysis of the evidence sent up with the record that it does not preponderate in their favor. It is not a case where findings are based on slight testimony which was opposed by testimony so overwhelming that the court, in the exercise of a sound discretion, would have been bound to set aside the verdict if it had been tried before a jury. By no ingenuity of argument can the conclusion be avoided that, in order to reverse the judge’s findings of fact, we must hold that he erred in not crediting the testimony of the plaintiff and her witnesses rather than that of the defendant Paye and the other1 witnesses called by the defendants. The rules that are to guide an appellate court in the determination of such a case are well settled. Prior to the amendments to the equity rules adopted by the Supreme Court in 1894, it was held that the findings of a master on questions of fact, approved by the court below, would not be set aside in the Supreme Court, except for clear error, even when the testimony was conflicting and the preponderance thereof might appear to be contrary to the master’s conclusion : Stocker v. Hutter, 134 Pa. 19 ; Brotherton v. Reynolds, 164 Pa. 134. This was where the credibility of witnesses was involved. But, as was pointed out in Phillips’s Appeal, 68 Pa. 130, the same weight was not attached to a master’s finding of fact where it was a mere deduction from other facts reported by him and was simply the result of reasoning." It would seem that the same distinction should be recognized when speaking of the review of a judge’s findings of fact in a case tried before him under the equity rules. But in general, and particularly in cases where the correctness of the findings depends upon the view to be taken of the dire'et testimony of witnesses which is in conflict, it has been uniformly held that they will not be disturbed except for error which clearly appears, and that an apparent preponderance of testimony against them is not sufficient to lead to a reversal if there is testimony which, if believed, will warrant them : Stockett v. Ryan, 176 Pa. 71; Commonwealth ex rel. v. Stevens, 178 Pa. 543; Hancock v. Melloy, 187 Pa. 371; Steinmeyer v. Siebert, 190 Pa. 471; Dilworth v. Kennedy, 201 Pa. 388 ; Lyons v. Lyons, 207 Pa. 13 ; Byers v. Byers, 208 Pa. 23 ; Mackintyre v. Jones, 9 Pa. Superior Ct. 543 ; Bannon v. Lincoln National Bank, 14 Pa. Superior Ct. 566; Hunter v. Bilheimer, 22 Pa. Superior Ct. 622; Obney v. Obney, 26 Pa. Superior Ct. 116. In the last cited decision of the Supreme Court, Mi1. Justice Mestrbzat said, that “ clear-and plain error must be pointed out. It is not sufficient that our conclusion would be different on the testimony brought up on the record. If the finding is warranted by evidence and is not clearly erroneous, we will not disturb it. Here the credibility of the witnesses is of more than usual importance in ascertaining the facts and, for obvious reasons, the trial judge was in a better position to determine it than we are.” This rule does not permit a perfunctory consideration of the evidence relative to facts in dispute and is in entire harmony with the doctrine enunciated by Justice Trunkey in Worrall’s Appeal, 110 Pa. 349 ; but it does attach great weight, and properly so, to the superior opportunity which the trial judge has to judge of the credibility of the witnesses. While he did not in this case hear all of the witnesses, yet the plaintiff, the defendant Paye, and some of the other witnesses testified before him, and, therefore, the case comes within the reason of the rule. In the foregoing remarks we are not to be understood as intimating that the testimony seems to us to preponderate against the judge’s findings. On the contrary, so far as we can judge, without having seen or heard the witnesses, it seems to us to preponderate in their favor.

■ The granting of an issue in an equity suit is a matter of discretion with the chancellor. This course is only adopted to inform his conscience, and if he is not satisfied with the finding of the jury he may disregard it: Equity Rule 72; Baker v. Williamson, 2 Pa. 116; Baker v. Williamson, 4 Pa. 456 ; Scheetz’s Appeal, 35 Pa. .88; Nicolls v. McDonald, 101 Pa. 514 ; Null v. Fries, 110 Pa. 521. Being solely for the benefit of the chancellor, if he can to his own satisfaction pass upon the evidence without the assistance of a jury trial, he may do so ; for the right of trial by jury, considered as an absolute right, does not extend to cases of equity jurisdiction: Bispham’s Equity, sec. 9. Here the application was made after the testimony was concluded. The trial judge evidently entertained a strong conviction as to the way the questions of fact ought to be decided and of his ability to decide them correctly without the aid of a jury. Under the circumstances, it cannot be declared that he did not exercise a sound discretion in accepting the responsibility which the law cast upon him instead of dividing it with a jury. The cases cited by appellant’s counsel arising from applications to open judgments, while in many respects resembling suits in equity, are not entirely governed by the same principles; and the same considerations, which in some instances have led to reversal of orders refusing to open the judgments and to submit the cases to a jury, do not control in suits in equity tried in court in accordance with the equity rules. We see no ground for overturning the action of the court in this particular and putting the parties to the expense and delay which would be incident to a trial by jury.

In the motion for reargument it was claimed that it was the duty of the court to ascertain the amount and character of indebtedness, if any, other than the two judgments, against the plaintiff, and the various items thereof, for which the assignment of legacy was held by Paye as collateral. With regard to the question raised by the exception to the judge’s disposition of this motion, it should be stated (1) that Paye explicitly admitted in his answer that the assignment'of legacy was, although apparently absolute, simply taken and held as collateral for the plaintiff’s indebtedness to him; (2) that one of the findings of fact that has been sustained is that it was so drawn at the plaintiff's request. Moreover, the learned judge says in his opinion : “It was stated by plaintiff’s counsel, on the argument of the case, that if it should be determined that the judgments and deed for the timber were valid the prayer for an account — to ascertain the amount, if any, due the defendant Paye for indebtedness in addition to the judgments — -would not be pressed. This would involve an ascertainment of sucli indebtedness, for which Paye claims the legacy was assigned, in part, as collateral. It seems to us that this is a matter cognizable in the orphans’ court when distribution of the estate of Bridget Canavan is made.” We do not find that this statement of the learned judge is controverted by the appellant’s counsel, and in view thereof, as well as of the adequate jurisdiction of the orphans’ court, we cannot say that there was error in the matter complained of.

Upon the whole case we conclude that the findings of fact were warranted by the evidence and that the conclusions of law logically follow therefrom.

All of the assignments of error are overruled, and the decree is affirmed at the costs of the appellant.