Livezey v. Pueblo Hardware Co.

5 Colo. App. 559

• Court: Colorado Court of Appeals
• Decided: January 15, 1895
• Status: Published

Opinion

Reed, J.,

delivered the opinion of the court.

Although it appears that Livezey, a defendant below, is appellant here, we are at a loss to understand how he becomes one. It does not appear that he was served with process or entered his appearance. He made no answer, and no judgment by default was entered against him, nor does he appear to have in any way participitated in the proceedings or appeal. It appears that the motion for a new trial was made by Gf. L. Dobbins and Chas. Bergenthal, and overruled. Judgment entered against the firm of G. L. Dobbins & Co., and the appeal bond executed by “ G. L. Dobbins & Co.”

One of the principal issues of fact to be determined, and perhaps the controlling one in the disposition of the case, was whether or not Livezey was a member of the firm of Dobbins & Co. It was asserted in the complaint and denied in the answer. The evidence in regard to it was contradictory. The court did not instruct the jury to find upon the issue, and there was no finding except as it might be inferred from the general verdict, and such inference would be that they found that he was not a partner.

Eliminating from the discussion the question of his partnership, upon which there was no finding, no question of law was involved, but questions of fact only. The evidence on every question involved was conflicting and contradictory. Under such circumstances, the finding of the jury will not be disturbed, unless for misdirection by the court. In this case the instructions of the court, on all questions submitted, appear to be ample and correct.

The judgment of the court will be affirmed.

■ Affirmed.