
    Thomas Conley et al. v. Isaac House et al.
    
    No. 14,245.
    (81 Pac. 1131.)
    Error from Lincoln district court; Rollin R. Rees, judge.
    Opinion filed July 7, 1905.
    Affirmed.
    
      Z. C. Millikin, for plaintiffs in error.
    
      George D. Abel, and E. A. McFarland, for defendants in error.
   Per Curiam:

The district court made an express finding relating to the controlling fact in this case. Most of the testimony offered' in favor of the plaintiffs in error is of a shadowy and unsubstantial kind. Some doubt is thrown upon the one piece of positive testimony by a showing that the witness giving it did not have the means of knowledge which he claimed. Some of the witnesses can neither read nor write, have only a suppositious knowledge of their own parentage, and seem free to impeach the character of their own mother after her death in favor of that side of the case which would benefit them financially. Andrew Sappenfield’s testimony is self-contradictory, and valid criticisms of other evidence in favor of the plaintiffs in error might be made.

It appears from evidence admitted without objection that Dicey Sappenfield, before her marriage with Isaac House, denied that they were cousins. On the witness-stand House denied it, and denied that he had ever told others they were cousins. Mrs. Tapp refused to admit that there was more to the charge than rumor, and never heard parties who would likely know speak of the fact.

All of the evidence is of a more or less uncertain character, and the opportunity of the trial judge for correctly estimating it is not afforded to this court. The presumption is in favor of legality and morality. The burden of proof was upon plaintiffs in error. The case was peculiarly one for the determination of the trial court, and its finding will not be disturbed.

The judgment of the district court is affirmed.  