Wagener & Co. v. Kirven

Mr. Justice JONES.

I concur in the result, because the preponderance of the evidence is not against the conclusions of fact by the Circuit Judge. I think that sec. 4, art. 5, of the present Constitution, was intended to sweep away the rule heretofore prevailing, and announced in the opinion of the Chief Justice, viz: that the conclusion of a Circuit Judge on a question of fact will be affirmed, unless without any testimony to sustain it, or unless it is manifestly opposed to the overwhelming weight of the evidence. This rule is inimical to the search for truth, which is, and should be, the duty of every Court. In its practical operation it makes the judgment of a Circuit Judge on a question of fact final, notwithstanding the jurisdiction and duty of this Court to review his conclusions of fact. Of course, every appellant, on an issue of fact in chancery, has the burden of showing error in the Circuit Judge in his conclusion thereon, but he discharges this burden when he *358shows that the preponderance of the evidence is against the conclusions of the Circuit Judge.