Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-11-22
SUPREME COURT OPINIONS
September Term - Knoxville,
1870.
Joseph Ii. HeiskeH, Attorney Gen.
eral and Reporter.

c. D: Nance and Isaac Mitchell, in error, VS..
s. L. NJ Haney.
This court will only reverse upon conflicting
evidence of facts, where there is a great pr e.
ponderLnce of evidence against theverdict, so
that the court can see clearly that the iudg-
ment of the law upon all the facts shown in the
evidence, is not that which the jury have
found.
Where the defendant had a son 'captured''
by party of Union men going out of East
Tennessee to Kentucky, during the civil war,
where was some unOrganized Confede ate
force, with a view to have them rescue bis son,
which information was received at II O'Clock
at 12 o'clock, the same day, Capt. Ashby and a
force left Knoxville. sixteen miles of, and cap.
tured a large body of men, with which the party
first named had formed a junction no force
from the Plains being present or cooperating /;
no railroad train having gone from the Plains
to Knoxville; there being no telegraph static n
there; and no proof being made of a courier
sent, and there being abundant means by
which the inform alton might have came from
other sources TO Knoxville, il was held there
was not sufficient proof, that the defendant
had been in any way instrumental in the cap
ture, to sustain verdict in favor of one of the
persons captured.
Cases reviewed: Marlborough VS. Alternately;
Meigs, K. AIS. Angus VS. DickersOD, Meigs, r.
45s; Dodge VS.. Britain; Meigs, s.; England
l9L Jones VS. Jennings; 10 Hum. 42s. Walker
vs.. Galbreath; Head. 3l5.
From the Circuit Court of Jefferson
county. ]. P. Swan, j., presiding.
J. R. Cooke for plaintiff in error.
Geo. Andrews, Meek and Gratz for de-
PENDANT.
OPINION.
This is an action of trespass COM
menced in jefferson county, by the de-
PENDANT in error, against the complainants
in error, and one Hodges; nolle prose-
qui was entered as to Hodges. The case
was tried by his Honor, Judge Swami
and jury, at August term, 1857, on a
plea of not guilty. The jury, under the
charge of The court, returned verdict in
favor of the plaintiff against both de-
PENDANTS, for the sum of two thousand
dollars. A motion for new trial was
made, which was oVerruled by the court,
and defendants prOveda1 appeal in nature
of writ of error to this court.
The ground assigned for reversal in
/ argument here is that the evidence does
} not support the verdict, under the rule
: laid down by this court for its action.
! where reversal is sought on the facts of
the case. 1t is proper, perhaps, in this
! case that we review the leading cases in
8
I else terms, to be deduced from them, as
there seems to be misrepresentation as to
what is the rule. 1t is frequently said
here iu argument that this court will not
reverse on the facts of the case, or will
not do SO where there is any evidence to
/ support it, even the slightest. This is not
( a correct statement of the rules, es will
/ appear by reference to the cases in which
! the attempt has been made by the court,
/ to lay down the rule with precision,
/ though it may seem to find support in
loose dicts, sometimes found in the opin.
ions in our reports.
Among the early cases on this question,
are Marlborough VS.. Alternately. Meigs,
r. AIS. Judge Reese delivering the
opinion of the court says: "This cast
is only another added TO the long list Of
cases, in which we have been constrained
to repeat, that this court neither can, mol
ought to weigh and balance the testimony
with a view to disturb the verdict of thu
jury and the judgment of the Circuit
| Court. We adhere to, and again an
nOunce' the principle, as familiar from
repetition, as it is obviously correct, tina
we will set aside verdicts approved by thu
Circuit Court, in those cases only, where th,
weight of the testimony against the yer
dict greatly preponderates.
In the case of Angus vs.. DickersOn
where the court refused to set aside thu
verdict, the question being as to whethe
the hiring Of slave, by Angus, was s
general or special hiring, the court says
''There was evidence conducting to prov,
that Angus had hired the negro specially
to drive his wagon" and, in the conclu
sion of the opinion, they say, 'the who'll
case was left fairly before the jury, anC
had the verdict been either way, WI
should not have felt at liberty to have dis
turbed it.
In the case of Dodge vs.. Britain
Meigs, r. IS, Judge Turley said: 9Th,
jury were the proper judges of the credi
bility of witnesses and weight Of tn,
testimony, and this Is not case in whicl
all the proof is on one side, aad we have
repeatedly said that we would not re
verse, if there be any proof by which the
verdict can be sustained" This was 8
case of conflicting evidence, and the
opinion, taken in connection with thu
facts of the case, only announces the
same principle found in the other two
cases cited.
In the case of England vs.. Burt,
! Hum. 401, the court, Judge Reese deliv.
eFing the opinion, after announcing its
infexible adherence to the rule, and the
fact that the court had frequently beer
called on to repeat 1t says: "The rule is
that in matters of fact in civil cases, il
which a jury has rendered q verdict,
which the Circuit Judge has refused t
set aside, we will affirm the judgment o
the Circuit Court, unless there be grea
preponderance of evidence against tn
verdict" He then goes on to illustrat
the rule, and says: eff four witnesse
testify before the jury on the side of tn
plaintiff, to given state of facts. ant
two witnesses testify to oppos 'ng fac s
on tn side of the defendant, and the Gil
cult judge refuses TO set it aide" thi
court will MOI disturb it under such cir
cumsranCes.
The statement of this point, by Nj
Meigs, in his Digest vol 2, p. $50, a
! the rule laid down by the court in tn
case Of Petit vs.. Petit, Hum. 19l, his
mised some as to the terms eff the rul'
His statement is: "That it is an inflex
bic rule of this court, 10 suffer a verde
20 stand where there is any evidence
susrsi1 it, unless there is error in mattel
of law"
, This ia a correct quotation, from
; sentence of Judge Turley's opinion
that case, but does not give a correct e!
preston of what was the rule on whiC
the court acted, which was no wise v
RANT from the one stated by Judge Rees
in the cases we have referred to above.
1t was case of contested will, whe
, much testimony had been introduced o
J both sides, as to the sanity of teststo
After commenting on the testimony ar
citing much of 1t the learned Judge sal
seWe have selected this testimony fro
: the record to show that there was pro-
: before the jury, upon which their verdi'
, / araipct tho validity of tha alleged tests