Howell v. Burlingame

Belcher, C. — This is an action to recover damages for alleged willful and malicious trespasses on real property of the plaintiff.

[380]The case was tried by the court without a jury, and the findings were, that the defendants, “ wantonly and maliciously, unlawfully and with force,” committed the trespasses complained of, and therebj'- damaged the plaintiff in the sum of eight hundred dollars, and that two hundred dollars more should be allowed as exemplary damages. Judgment -was accordingly entered against both defendants for one thousand dollars and costs.

The defendants moved for a new trial, which was denied, and have appealed from the judgment and order.

The only contention on the part of appellants is, that the evidence was insufficient to justify the findings as against the defendant Marsh. It is said: “There is no evidence whatever to sustain the finding that Marsh wantonly or maliciously trespassed upon the property.” And again: “ The complaint alleges that Marsh committed the trespass at the instigation of Burlingame. The facts are, that Burlingame committed the trespass himself, and that Marsh had nothing whatever to do with it.”

We have carefully read over all the evidence presented in the record, and, in our opinion, it was sufficient to justify the findings as against both defendants. It is true there was some conflict, but in such cases the decision of the trial court is ordinarily held conclusive in this court.

We advise, therefore, that the judgment and order be affirmed.

Vancliee, 0., and Fitzgerald, 0., concurred.

The Court. For the reasons given in the foregoing opinion, the judgment is affirmed.