D. W. LUBECK v. L. L. BULLOCK

D. W. LUBECK v. L. L. BULLOCK. Hew Trial.—Where a cause is tried by the Court, without a jury, and an appeal is taken from an order denying a new trial, and the error assigned is that the finding and judgment are contrary to the evidence, the Supreme Court will not disturb the judgment if the testimony is conflicting. Appeal from the District Court, Eleventh Judicial District, Placer County. The facts are stated in the opinion of the Court. Plaintiff recovered judgment in the Court below, and defendant appealed. George R. Moore, for Appellant. Tuttle & Fellows, for Respondent. [MAJORITY — By the Court, Sanderson, C. J.] By the Court, Sanderson, C. J. This case comes before us on appeal from an order overruling a motion for a new trial upon the sole ground that the finding and judgment are contrary to the evidence. The case was tried by the Court, without the intervention of a jury. The testimony upon the question of fraud involved in the case is somewhat conflicting, and in such cases the result mainly depends upon the credibility of the witnesses, of which we have no opportunity to judge. In such cases we cannot disturb the judgment of the Court below. Judgment affirmed.