I am unable to concur in the majority opinion. This is an equitable action, and it is one of those cases which calls for the proper rule to apply to a judgment of the trial court presented to this court on review.
This court rendered an opinion on April 12, 1932, sustaining the judgment of the trial court. Thereafter a rehearing was granted and this court rendered another opinion on June 6, 1933, whereby the judgment of the trial court was vacated and set aside. At the time of the rendition of the latter opinion the personnel of the court had changed, there being four new members who had not participated in the opinion of April 12, 1932. After the matters in controversy had been discussed in conference, I concurred in both of these opinions. Since the oral arguments presented to the court on the petition for rehearing on the last opinion, I have personally read the entire record and the exhaustive briefs. As the result of a close study of the questions presented herein, it appears to me that this case presents a record upon which the trial court would have been justified in finding either for the plaintiff or for the defendant. The dividing line is slender. It is inescapable that a study of this record presents facts which could not leave the trial court altogether free from some doubt, at least, as to which side should prevail in an action based upon facts and circumstances as shown in the instant case.
It is to be remembered that this is not an action de novo, but we are considering an appeal from the judgment of the trial court in an equitable action. This court is not sitting as a trial court, and is not in a position to adjudge the credibility of the witnesses. It is not a question of this court taking a different view from that which was taken by the trial court, and pronouncing a judgment herein from the record which has been submitted to it on review as if this were an original proposition. It is sufficient to say in this case that the evidence detailed by this record is extremely conflicting. It was apparent that it would be so after the opening statements of counsel were made as recorded in the record.
Counsel for defendant, at the threshold of his opening statement, stated to the court as follows:
"If the court please, it is readily evident from the statement of counsel, that there will be some very sharply drawn conflicts in the evidence."
The trial court heard these witnesses. It has a peculiar advantage over the reviewing court in determining the weight and credibility of the witnesses. It observes their action, their demeanor on the stand, their interest, if any, in the case. *Page 122
It is apparent to me that the trial court could have rendered a judgment for the plaintiff or for the defendant, and that there is substantial evidence to support a judgment for either. It is not the province of this court in an equitable action to set aside the judgment of a trial court unless it is clearly wrong. Heckman v. McQueen, 57 Okla. 303, 157 P. 139. It is not sufficient that this court might reach a contrary conclusion.
Before a judgment of the trial court in an equitable action should be set aside, it should appear that such judgment is clearly and manifestly wrong and against the clear weight of the evidence. As I review this entire record, I am unable to conclude that the evidence submitted to the trial court was of such clear and convincing character that this court ought to set aside the findings and judgment of the chancellor who heard and saw the witnesses who testified.
In my opinion a rehearing should be granted and an opinion should be delivered sustaining the judgment of the trial court.
For these reasons, I dissent.