
    D. L. McDONOUGH, Respondent, v. W. P. SMITH, Appellant.
    Appeal — Findings op Fact. — Where tbe evidence is conflicting, the findings of the lower court will not be held erroneous, unless the error is clear and the finding against the weight of the evidence.
    Appeal from a judgment of tbe district court of tbe second district, and from an order refusing a new trial. The facts are stated in the opinion.
    
      Mr. Charles W. Zane, for appellant. .
    
      Mr. Presley Denney, for respondent.
   Zane, C. J.:

cause was instituted in the second judicial district court in order to recover $150, with interest, alleged to have been paid by plaintiff to defendant through mistake. A trial by jury was waived, and the case was tried by the court. The court found from the evidence that the plaintiff executed a note to defendant for the sum of $200 borrowed by one Josiah Rogerson; that after the note became due, Rogerson paid it, but after the payment the defendant, Smith, instituted a suit upon the note against the plaintiff in a justice’s court of Beaver county, and without service of summons, and without the knowledge of the plaintiff, then defendant, obtained a judgment for the amount of the note with interest; that a few days thereafter the plaintiff’s wife, in the absence of her husband, in order to prevent a levy under an execution issued on the judgment in the justice’s court, with plaintiff’s money paid $150 to defendant. Prom these findings of fact the court stated as a conclusion of law that plaintiff was entitled to recover the $150 with interest, and entered judgment accordingly. To reverse this judgment the defendant has appealed to this court. The defendant assigns as error the findings of the court below that Rogerson paid the note upon which the judgment was rendered in the justice’s court; and, also, in finding that the defendant in the justice’s court, here plaintiff, was not duly served with notice of the pendency of the suit.

We have considered the evidence as to these facts, as it appears in the record, and, while the evidence is conflicting, we are not satisfied that the weight of the evidence is against either of the findings of the court below. This court will not reverse a judgment of a lower court because of alleged error in finding any essential fact when there is doubt as to which side the evidence preponderates. Such an error must be clear, and the conviction must be abiding, and the court satisfied before reversal for such an error. We find no error in this record.

The judgment of the court below is affirmed.

Bobeman, J., and Hendeeson, J., concurred.  