Opinion
42449 Record No. 7360.
March 8, 1971
Present, All the Justices.
Pleading and Practice — Appeal — Trial Court Finding.
Parties waived trial by jury. Ruling by trial court presumed to be correct and appellant has not borne the burden of showing error.
Error to a judgment of the Circuit Court of Henrico County. Hon. John Wingo Knowles, judge presiding.
Affirmed.
Walter R. Gambill (Gambill and Martin, on brief), for plaintiffs in error.
James L. Sanderlin (McGuire, Woods Battle, on brief), for defendant in error.
Plaintiff contends that the trial court erred in not finding as a matter of law that defendant was the principal by whom plaintiff was entitled to be reimbursed for sums paid by him as surety.
The parties waived a trial by jury and the trial court heard the evidence ore tenus. In these circumstances the ruling of the trial court in favor of the defendant is presumed to be correct and will not be set aside unless it appears from the evidence that it is plainly wrong or without evidence to support it. Wright and Hunt, Inc. v. Wright, 205 Va. 454, 460, 137 S.E.2d 902, 907 (1964).
The burden is upon the party who assails the correctness of the trial court's ruling to show that it is manifestly wrong. Ford v. Ford, 200 Va. 674, 679, 107 S.E.2d 397, 401 (1959).
The trial court found on conflicting evidence that Charles C. Mottley and not the defendant was the principal for whom plaintiff was surety.
This finding is amply supported by the evidence and will be affirmed.
Affirmed.