EATHER, J., dissenting.
Rehearing denied.
For former opinion see 65 Nev. 428, 198 P.2d 290. OPINION Appellants have filed a petition for rehearing in which they emphasize the fact that in our former opinion we expressed the view that the testimony, both of Belz and the Durhams, was much weakened by the cross examination and by the very leading and suggestive form of the questions by which the testimony was elicited. Appellants' petition for rehearing urges that the testimony of these witnesses is not entitled to credence and supplies no substantial evidence in support of the trial court's findings. Numerous opinions of this court have expressed the view that this court would or might have found differently on the facts had it been the trier of such facts, but felt itself bound by the well-recognized rule that it would not intrude upon the province of the trial court in this respect. In Torp v. Clemons,37 Nev. 474, 477, 142 P. 1115, 1116, the trial court had found that a trust existed by virtue of a deposit of certain shares of stock. McCARRAN, J., in an opinion concurred in by the other justices, and in which petition for rehearing was denied without opinion, said: "The testimony, as it is presented in the record, falls far short of binding conviction to our mind as to the existence of a trust between Clemons and Overton, but as there is a substantial conflict in the testimony, and there is some substantial evidence in support of the finding of a trust, the conclusion of the trial court in this respect, in view of the long-established rule of this court, will not be disturbed." Paraphrasing the language there used, we may indeed say that the testimony in the instant case, as it is presented in the record, falls far short of binding conviction to our mind of the existence of the facts which the former opinion of this court,62 Nev. 417, 153 P.2d 899, 155 P.2d 788, written by Mr. Justice ORR held to be necessary to a recovery by the plaintiffs, respondents herein, but as there is substantial *Page 453 conflict in the testimony and there is some substantial evidence in support of the findings, the conclusion of the trial court in this respect, in view of the long-established rule of this court, will not be disturbed. If by our adherence to this rule, "a hideous and cruel wrong will be perpetrated," as asserted by appellants, such wrong grows out of the facts that the trial court believed the testimony of witnesses asserted by appellants to be unworthy of belief. Had the trial court refused to believe the testimony of these witnesses (and the standing and experience of appellant's attorneys through this protracted litigation consuming six years permit us to assume that their arguments attacking their credibility were earnestly and efficiently presented to the trial court) appellants would with entire propriety have insisted upon this same rule by which we are bound.
The petition for rehearing quotes at length from the opinion of Mr. Justice ORR on the former appeal and insists that we have deviated from the law of the case as there established. In this regard, however, appellants fall into precisely the same error as the one in which they attack the testimony of Belz and the Durhams. They ignore the additional evidence adduced at the second trial or simply characterize such additional evidence as unsubstantial. We are satisfied that the testimony of respondent Durham and his wife and the witness Belz constituted substantial evidence. The credence to be given to this testimony was a matter to be determined entirely by the trial court.
Rehearing denied.
HORSEY, C.J., concurs.