ON PETITION FOR REHEARING.
PER CURIAM.— A petition for a rehearing has been filed in this case, in which counsel very earnestly contend that this court should review the evidence and reverse the ease if in the opinion of this court the appellant should have recovered at the trial in the district court. In other words, counsel argue that this is an equity action, and that this court is not bound by the rule incorporated in sec. 4824 of the Rev. Codes, that if there is a substantial conflict in the evidence the judgment will not be reversed.
It seems to be the argument of counsel that see. 4824, supra, does not apply to equity eases, and that this court has never so applied said section since its adoption by the legislature in 1907. Before taking up this question counsel admit in their petition that “there may be some evidence which taken alone slightly tends to support this finding,” and “Undoubtedly the evidence in this case is conflicting in certain particulars, ’ ’ but argue that the evidence, as a whole, does not support the findings of the court.
In the original opinion this court said: “This court will not reverse a cause because on the evidence as a whole it might have reached a different conclusion from that arrived at by the trial court, if the question were submitted to this court as an original proposition, but will review the evidence only for the purpose of ascertaining whether there is sufficient evidence in the record to support such findings; and, if in reviewing such evidence the court finds a substantial conflict and that there is evidence which supports the findings of the court, the judgment will be affirmed. ” This is the correct rule, as we understand it, as applied by this court, both before and since the amendment made to sec. 4824 by the legislature in 1907.
*644In the case of Later v. Haywood, 15 Ida. 718, 99 Pac. 828, this court referred to the earlier cases dealing with this question, and said:
“It must be admitted, on the other hand, that the preponderance of evidence is with the appellants, but we cannot reverse the judgment simply because the preponderance of the evidence is against the judgment. The rule is firmly established in this court that it will not reverse a judgment where there is a substantial conflict in the evidence, and this rule applies as well in equity eases heard upon oral testimony as in law cases. (Stuart v. Hauser, 9 Ida. 53, 72 Pac. 719; Morrow v. Mathews, 10 Ida. 433, 79 Pac. 196; Robbins v. Porter, 12 Ida. 738, 88 Pac. 86.) ”
In the case of Bowers v. Cottrell, an equity action and decided by this court since sec. 4824, supra, was amended, this court held: “Where there is substantial evidence to support the findings of the court, they will not be set aside on the ground of insufficiency of the evidence.” Again, in the case of Swanson v. Kettler, ante, p. 321, 105 Pac. 1065, in the opinion on petition for rehearing, this court, through Justice Ailshie, said: “It is true that the evidence is conflicting on this issue and is indeed unsatisfactory, and if it were an original proposition before this court, we might find differently from the finding of the trial court, but under the uniform rule of this court, as well as the command of the statute (see. 4824, Rev. Codes), we are impelled to sustain the finding of the trial court. There is a substantial conflict in the evidence, and the trial court felt justified in believing the evidence to the effect that the Malta No. 1 and the Emma No. 2 covered the same ground and were identical.” This applies directly to the contention made by appellant in the petition for a rehearing.
An examination of the evidence in this case, we think, shows a conflict, and while it is unsatisfactory and might have led this court to reach a different conclusion, were the case submitted to this court originally, still we find sufficient and substantial evidence to support the findings of the trial court. Of course upon an appeal in an equity case, if there is no *645substantial evidence which supports the findings of the trial court, the judgment will be reversed,1 but where the evidence is oral or partly oral and partly written, and there is a conflict in the evidence, and the record contains substantial evidence tending to support the judgment, the case will not be reversed. Whether, therefore, the proviso contained in sec. 4824, ‘ ‘ That whenever there is substantial evidence to support a verdict, the same shall not be set aside,” applies to the power of this court in reviewing the findings of the trial court, can make no difference under the rule established and followed in this state.
It must be remembered that where the evidence is all oral or partly oral, this court does not have the same means of determining the credibility of the witnesses as the court below. In that court the judge heard the witnesses testify, observed their demeanor upon the witness-stand and possessed all those aids necessary to enable it to give due credit to every item of testimony, many of which cannot be shown in the record, and for that reason do not appear to this court. The trial judge may have concluded that all or some of the witnesses testifying on behalf of the appellant were not entitled to credit, and, upon the other hand, may have concluded that all or many of the witnesses testifying for respondent were entitled to credit; and where there is a conflict in such testimony, and the trial court makes a finding which has substantial evidence to support it, this court will not disturb the conclusions of the trial court.
The petition for rehearing is denied.