Dissenting Opinion - DUNBAR, C. J. [7 Wash. under all the facts and circumstances before them, upon which side lay the preponderance of the evidence. In Lybarger v. State, 2 Wash. 553 (27 Pac. Rep. 449), we held that where there was sufficient evidence to sustain the verdict of the jury the supreme court would not pass upon the weight of testimony. In Graves v. Griffith Realty, etc., Co., 3 Wash. 742 (29 Pac. Rep. 344), the court said: "The main contention here is, that the evidence did not support the findings. An appellate court in a law case will not usurp the functions of the jury, or of a judge acting in the capacity of a jury, and reverse the judgment because the weight of testimony seems to be on the other side, or because, in a case of conflict of testimony, the jury believed the testimony of witnesses that it does not believe. This doctrine is so elementary and so universally announced by the courts that it would be idle to enlarge upon it or discuss it further. It is sufficient to say that the jury is the judge of the facts. If the testimony on which the judg ment is based is competent, and is legally introduced, and if conceded to be true would sustain the judgment, the appellate court will not inquire further as to its sufficiency." In Puget Sound, etc., R. R. Co. v. Ingersoll, 4 Wash. 675 (30 Pac. Rep. 1097), we decided that "the verdict of a jury will not be disturbed where the testimony is conflicting, if there is sufficient evidence to sustain the verdict;" and in Brasen v. Seattle, Lake Shore, etc., Ry. Co., 4 Wash. 754 (31 Pac. Rep. 34), that where there is sufficient legal testimony to support the verdict of the jury awarding damages, the verdict will not be disturbed in the supreme court." In Dillon v. Folsom, 5 Wash. 439 (32 Pac. Rep. 216), the court said: "An examination of the record satisfies us that there was a substantial conflict in the testimony upon the main issue, and this being the case the verdict must stand. If this court should set aside verdicts upon the ground that in its opinion a preponderance of the testimony was in favor Dec. 1893.] Dissenting Opinion — DUNBAR, C. J. of the other side of the issue presented to the jury, there would be little use in jury trials. All this court will do in any case is to investigate the record so far as is necessary to see whether or not there was substantial testimony to support all the issues necessary to be found by the jury, and if such is contained in the record, the verdict will not be set aside for the reason that in its opinion there was a greater amount of testimony on the other side." In Booth v. Columbia, etc., R. R. Co., 6 Wash. 531 (33 Pac. Rep. 1075), the court, after announcing that a certain proposition was denied, proceeds to say: Whether or not it was successfully denied, is a question for the jury to pass upon, and they have passed upon that question in favor of the contention of the respondents, and this court will therefore not presume to set aside their verdict, even though in its judgment the weight of testimony is in favor of the appellant.'' And in Burden v. Cropp, ante, p. 198, the language of the court is: The only question presented by the record in this case is that of the sufficiency of the evidence to sustain the verdiet of the jury, and as we think that the testimony of the plaintiff's witnesses, if believed by the jury, was sufficient to establish the cause of action set out in the complaint, it follows by well established principles that the verdict must be sustained, even although the testimony offered in opposition thereto is more satisfactory to our minds. It is not enough to authorize us to disturb the verdict of the jury that we should be of the opinion that the evidence upon the other side was entitled to a greater weight than that upon which the verdict seems to have been founded. It is enough if there was any evidence which, if uncontradicted, would be sufficient to establish all the facts necessary to sustain the complaint of the successful party." The decisions cited above have been concurred in by every member of this court, and they have been so uniform, so clear and so pointed that the bar of the state had Syllabus. [7 Wash. a right to rely upon them in the preparation of their briefs in this court; and the brief of the respondent in this case convinces me that they did rely on the law in that respect being settled, and therefore did not discuss the question upon which the case is reversed, but devoted their brief to the discussion of law points involved, upon which the majority seems to sustain them. I know of no good reason why this court should leave the well beaten path which it has heretofore so uniformly trodden, in company with every other appellate court, and start out on another road which, in my judgment, it cannot occupy without a plain usurpation of the province of another tribunal; without in effect denying a constitutional right to the citizen, and without bringing about the unfortunate disturbances which always follow the unsettling of a well established principle. The judgment should be affirmed. SCOTT, J., concurs. [No. 1134. Decided December 28, 1893.] THE STATE OF WASHINGTON, Respondent, v. FRANK WILSON, Appellant. APPEAL-FAILURE TO FILE TRANSCRIPT - EXCUSABLE DELAY. Where an appellant's failure to file his transcript and briefs within the time required by statute is due to a misunderstanding between his attorney and the clerk of the superior court, and the appellant has at all times been endeavoring in good faith to prosecute his appeal, and the transcript has been filed and his brief served prior to the hearing upon a motion to dismiss his appeal, the motion will be denied. (HOYT, J., dissents.) Dec. 1893.] Opinion of the Court-STILES, J. Appeal from Superior Court, King County. Opinion on motion to dismiss appeal. G. D. Farwell, for appellant. John F. Miller, Prosecuting Attorney, for The State. The opinion of the court was delivered by STILES, J.-The state moves to dismiss the appeal in this case because of appellant's neglect and failure to file his transcript and briefs within the time required by the statute. From the affidavits on file and the fact that the appellant, in response to the motion, has already caused the transcript to be filed in this court and his brief to be served and filed, it appears that, although there has been consid erable delay in complying with the law in regard to filing transcript and briefs, appellant has at all times been endeavoring in good faith to prosecute an appeal from the judgment against him, and that the delay has probably arisen more from a misunderstanding between his attorney and the clerk of the superior court than from any other reason. The motion to dismiss is, therefore, denied. DUNBAR, C. J., and ANDERS and SCOTT, JJ., concur. HOYT, J., dissents. Opinion of the Court-SCOTT, J. [ 7 Wash. [No. 870. Decided December 30, 1893.] LARAMIE MAYER, Assignee of Charles F. Frasch, Appellant, v. CHARLES F. FRASCH AND KATE FRASCH, Respondents. FRAUDULENT CONVEYANCES-CONVEYANCE TO WIFE. A conveyance by a husband to his wife is not fraudulent as to creditors, although he was indebted to them at that time, and has been ever since, when in fact the indebtedness existing at the time of the conveyance had been liquidated, and the debtor was, moreover, possessed of considerable other property, and had never represented himself as the owner of the land in controversy for the purpose of securing credit. Appeal from Superior Court, King County. Strudwick & Peters, for appellant. The opinion of the court was delivered by SCOTT, J.-This action is brought to set aside a conveyance executed by Charles F. Frasch to Kate Frasch, his wife, of one hundred and sixty acres of land, situated in Whatcom county, on the ground that said conveyance was a fraud upon his creditors. Said Charles F. Frasch became the owner of the land on the 7th day of September, 1889, and on the 27th day of November of said year he intermarried with his codefendant, and the deed of the land in question was executed on the 12th day of April following. Said land was of the value of about one thousand dollars. During these times, and prior and subsequent thereto, the defendant Charles F. Frasch was engaged in the grocery business in the city of Seattle. On the 9th day of March, 1891, he made a deed of general assignment of all of his property, both real and personal, for the benefit of his creditors, to |