Swanston v. Sublette

1 Cal. 123

• Court: California Supreme Court
• Decided: June 15, 1850
• Status: Published

Opinion

By the Court,

Hastings, Oh. J.

The respondents’ counsel relies principally upon the first point made, viz: “The record .« dogs not state that no other evidence was adduced, and the “ intendment of law is in favor of the judgment.” That such is dire law in all courts of this jurisdiction, under the ordinary rules of practice, no one will controvert. But this is a case made under the statute of Feb, 28th, 1850, by the provisions of which we are to -presume that all the evidence is embodied in the record, and the question, to be settled is, whether the court below erred in finding tor the respondents on the testimony. It is urged in respondents’ second point, and upon the argument, ⅛»⅛ the testimony is conflicting, and that in such case a new trial could not be granted. There appears to be no discrepancy in the testimony as to the fact that- appellants had the actual possession of the property in question at the time of the levy, .and .all the witnesses seem to agree that they had either a general or special property in the lumber seized. The court therefore erred in finding for the respondents, and the judgment js reversed, and a new trial awarded.