CHARLESTON.

#### Gladys McKown v. Citizens State Bank of Ripley.

Submitted October 3, 1922.

Decided October 10, 1922.

Appeal and *Eeeob*— Verdict *Against Weight of the Evidence Set Aside on Writ of Error; Findings of Court, Against Weight of Evidence, Set Aside, and Proper Finding and Judgment Rendered on Writ of Error.*

When on the trial of an action the evidence decidedly preponderates against the verdict of the jury or the finding of the trial court thereon, this court will on writ of error reverse the judgment, and if the case was one tried by the court in lieu of a jury, will make such finding and enter such judgment on the evidence as the lower court should have done.

Error to Circuit Court, Jackson County.

Action by Gladys McKown against tbe Citizens’ State Bank of Ripley. From a judgment of the circuit court for .plaintiff on trial *de novo*on appeal from the court of a justice of the peace, defendant brings error.

*Reversed; Judgment for defendant.*

*T. J. Sayre, Hogg é Hogg,*and *Kenna K. Hyre,*for plaintiff in error.

*J. L. Wolfe,*for defendant in error.

'MilleR, Judge:

Plaintiff, sued defendant before a. Justice of Jackson County upon a claim of $160.00. The justice, after hearing the evidence, found for defendant and gave judgment for costs in its favor against plaintiff. The plaintiff took an appeal to the circuit court, where the case was tried *de novo*before a special judge chosen, who by agreement of the parties sat in lieu of a jury, and after hearing all of the evidence found for the plaintiff and rendered judgment in her favor against the bank for the full amount sued for, which with interest aggregated $167.84, and also for costs before the justice and in the circuit court therein incurred.

*717Tbe sum sued for was tbe amount of an alleged deposit by plaintiff in tbe bank on December 28, 1919. It was claimed that tbe deposit was made on that date by plaintiff’s bus-band, wbo made all deposits and transacted tbe business for ber with tbe bank. Tbe claim to this deposit was based largely upon an entry of credit for $160,00 originally appearing on tbe pass book immediately under an item of “Dec. 12, Dept. $100.00,” thus, “- 28, Dept. $160.00.” Tbe month was not written in front of tbe figure “28,” but tbe plaintiff says there were ditto marks under tbe word or abreyiation ‘ ‘ Dec. ’ ’ in tbe preceding entry; but tbe cashier of tbe bank, with whom tbe transaction took place, swears that there were no ditto marks there; that ditto marks were not generally used to indicate tbe month; that when more than one deposit was made in any one month, tbe dates after tbe first item were always indicated by figures entered in tbe date column only. Tbe plaintiff concedes that December 28, 1919, was Sunday, and that tbe bank was not open on that day, but she pretends that Armstrong, tbe cashier, took tbe money on that day. But she was not present when tbe deposit, if any, was made. Tbe record shows that plaintiff’s account bad not been balanced after tbe entry of December 12, 1919, until shortly before this suit was brought March 7, 1921. But tbe cashier testifies that on March 10, 1920, a deposit of $5.28 was made in tbe absence of tbe pass book, and that later when tbe book was brought in, be turned to tbe ledger to get tbe date of that item, and then seeing tbe entry of $160.00 as of March 1, 1920, be put that item on tbe pass book also, but that no deposit of that amount was made at that time. Tbe next deposit after March 10th was June 24th, of $110.00. If bis testimony is correct, these entries were likely made at that time, for otherwise they could not have been made in chronological order as they appear on tbe pass book. It was while be was making these entries in tbe pass boob to correspond with the ledger entries that be says be discyovered tbe entry on tbe pass book as of “— 28, Dept. $160,” and drew bis pen through it, and tbe new or corrected entry of March 1, 1920, was substituted *718for it. Following these were several other items of credit, down to and including one of February 24, 1921. Plaintiff’s husband said respecting the alleged deposit of December 28, 1919, that he was at church on Sunday night, and there handed the money to Armstrong, cashier, who made the entry, “28, Dept. $160.00.” But the justice of the peace before whom (the suit was brought testified that at the trial before him McKnown swore that he paid the money representing this deposit over the counter at the banking house.

It seems to us that Armstrong, the cashier, and Ferguson, the assistant cashier, satisfactorily explained the corrections in plaintiff’s pass book. Armstrong admits that the sum of $160.00 was handed to him at the church on a Sunday night, and that he made the entry in plaintiff’s pass book as it originally appeared; but he swears that this transaction occurred, not on December 28, 1919, but on Sunday night, February 29, 1920, and that in making the entry he said to McKown that he would enter it as of Saturday, February 28th; that on going to the bank on Monday morning he made out the deposit slip to correspond to the date entered in the pass book, which slip was produced in evidence and identified as the original; but the date of the ledger entry was as of March 1, 1920, the actual date of the deposit of the money in the bank. He also swears that plaintiff’s husband called at the bank frequently to inquire how plaintiff’s account stood, and was told the fact as shown by the ledger sheet, and that the present claim of $160.00 was not made until after ■the pass book was balanced and returned, February 25, 1921. The bank officers were further examined, and testified with reference to the books that while small discrepancies in cash short or over had occurred on some of the days in January and February, 1920, there was nothing in the cash account or in the daily balances to suggest any such sum as $160.00, short or over in cash.

So that it seems to us that there is no evidence to justify the theory that plaintiff is entitled to credit for two deposits of exactly the same sum, all within so short a time. Neither plaintiff nor her husband swear that two deposits were made *719instead of one for $160.00. They rely solely on the entries and erasures on the pass hook.- McKnown does not claim to hav.e made a deposit of $160.00 on March 1, 1920. His sole contention is that he made one of that amount on December 28, 1919. There is no evidence justifying the conclusion that plaintiff is entitled to credit for both items. Not a particle of evidence was offered by plaintiff to show she made two deposits of $160.00 except what is evidenced by her pass book, which was explained by the bank officers. To allow her credit for both entries would be wholly inconsistent with the evidence, which does not really conflict on any point.

Generally where there is a conflict in the oral evidence on material facts, we do not disturb the finding of the jury; or of the trial court if tried without a jury; but if the evidence, as in this case, decidedly preponderates against the finding of the jury or of the court, this court will grant a new trial: and if the facts as well as the law have been submitted to the court in lieu of a jury, we will on writ of error reverse the erroneous judgment and enter such judgment here as the court should have entered. *Limer*v. *Trader’s Co.,*44 W. Va. 175; *Griffith*v. *American Coal Company,*78 W. Va. 34. Indeed where the decided weight or preponderance of the evidence is against the verdict or the finding of the court, it is our duty to set aside the verdict or finding of the lower court. *Palmer*v. *Magers,*85 W. Va. 415. These conclusions render it unnecessary, if not improper, to respond to any of the other points of error relied on.

The judgment and finding of the court below will therefore be reverséd, and on the evidence adduced on the trial we find for the defendant; and our judgment theron will be that the plaintiff take nothing by her action and that defendant recover against her its costs in the circuit court as well as those incurred by- it in this court.

*Reversed; Judgment for defendant.*