188 P. 442 | Wyo. | 1920
This case is here on error, and has been submitted upon a motion to strike the bill of exceptions and also upon the merits. The motion will first be considered. It is moved thereby, first, to strike the entire bill, and, second, to strike that part of the bill showing a motion for new trial filed December 30, 1916, and the order of March 22, 1918, overruling the same, on the ground that the bill was not presented for allowance within sixty days after the overruling of said motion for new trial, but was presented sixty-two days thereafter without an extension of time having been applied for or granted. The facts upon which the motion must be determined are as follows:
The cause was tried without a jury in the District Court in Sheridan county, one of the counties of the Fourth Judicial District, with Judge Parmelee, the regular Judge of said District, presiding, on December 21, 1916, and judgment for the plaintiff was rendered on that day. On December 30, 1916,, a motion for new trial was filed by the defendants, the plaintiffs in error here, alleging errors occurring upon the trial and in the findings and judgment. Subsequently another motion for new trial was filed by said defendants .on the ground of newly discovered evidence. After the filing of the first motion for new trial, Judge Parmelee was succeeded in the office of Judge of said District by Judge Burgess, who had represented one of the parties as counsel on the trial of the cause, and on March 14, 1918, neither of said motions having been disposed of, the cause was assigned and transferred to Judge Raymond of the Seventh District “for trial, hearing and determination”. Thereafter, on March 22, 1918, the first motion for new trial was presented to said court, Judge Raymond presiding, and it was on that day overruled, the defendants excepting, and by the order overruling the motion time was granted the defendants until and including the first day of the next regular term of the court in which “to prepare, settle and file their bill of exceptions herein”. On May 13, 1918, Judge Raymond presiding, the court’s attention was
The bill, which includes the evidence and exceptions taken upon the trial, the findings and judgment and exceptions thereto, and also said motions for new trial, and shows the oyerruling of each motion with the exception thereto, was presented for allowance to Judge Parmelee on May 20, 1918, and the fact that such presentation was endorsed on the bill by Judge Parmelee over his signature as the “Judge presiding at the trial of said cause”.- On the same day the bill was allowed and signed by him, as such Judge, his certificate of allowance reciting that the bill was presented to him on said May 20, 1918, “within the time fixed by law”; that it “contains all the evidence offered by the parties to said action on the trial thereof and all the exceptions and objections of the parties to the rulings of the court during said trial and that all the matters and things therein set forth are true and correct”. On May 23, 1918, the bill was presented for allowance to Judge Raymond, and on that day the same was signed and allowed by him, “in so far as it relates to said two motions for a new trial, the orders overruling the same, the exceptions of counsel thereto, and orders fixing date for preparing, settling and filing the bill of exceptions herein.”
The statutory provisions applicable to this case upon the question of whether the bill was presented in time are found in section 4595, Compiled Statutes, 1910, as amended by section 1 of chapter 70 of the Laws of 1917. Before the section was amended, it provided that time may be given for reducing an exception to writing, but not beyond the first day of the next succeeding term. As amended, the section reads as follows:
“Section 4595. The party objecting to the decision must except at the time the decision is made,'and shall have sixty*543 days from and after the date of the judgment, decree, or final order in the case within which to reduce the exception to writing and present the same to the court or judge for allowance. If within said sixty days the party excepting shall make it satisfactorily to appear to the court or judge authorized to allow the bill of exceptions that the party' will be unavoidably prevented from presenting the bilí within said time, the court or judge by written order may extend said time, but not to exceed sixty additional days.”
As to the matters occurring upon the trial, including the findings and exceptions thereto, the bill was properly presented to Judge Parmelee, who presided at the trial, notwithstanding that his term of office had expired (Stirling v. Wagner, 4 Wyo. 5, 31 Pac. 1032). And having been presented to him on May 20, 1918, within the period of sixty days after the date of the order overruling the first motion for a new trial, which had been filed on December 30, 19x6, and was based upon errors alleged to have occurred upon the trial and in the findings and judgment, the bill, as to the exceptions included therein taken upon the trial and to the findings and judgment, was presented strictly within the time granted by the statute in the absence of an order extending the time.
And we think the entire bill assailed by the motion to strike was presented in time, for the reason that it was presented to both Judge Raymond and Judge Parmelee within the time granted by the order of the court of March 22, 1918, made at the time of overruling said first motion for a new trial, which, in our opinion, is to be ■ understood and construed as an order extending the time to and including the first day of the next term of said court. We know judicially that the first day of the next term, as prescribed by statute, was June 10, 1918, a period of 80 days from the date of said order, and only 20 days additional to the sixty days granted by the statute, and therefore within the power of the court or judge, by acting within the sixty days granted by the statute, to extend the time not to exceed sixty additional days.
“The court by an order made in term, granted appellant ‘sixty days' additional time’ for settling the 'bill of exceptions. This is, we think, to be construed as meaning sixty days in addition to the time allowed by the practice in the absence of an order extending the time, or, in other words, sixty days after the adjournment of the term in which the order was made.”
The case upon the merits, as substantially stated in the briefs, is an action brought by the guardian of the estate of a minor child, to impress a trust upon certain real estate, resulting from the alleged unauthorized use of the funds of said minor 'by a former guardian in paying a certain mortgage upon said real estate and causing thereby its discharge upon the records, the specific relief asked being that said minor or the plaintiff, as- her guardian, be subrogated to the rights of the mortgagee, and that the mortgage be revived as a lien upon the property with the same priority as before the payment and discharge thereof by the use of the ward’s money.
Certain facts are either admitted by the pleadings or established by the evidence without controversy. Such facts are: The mortgage in question, dated October 31, 1906, was executed to J. Crouse Barr by Sterling P. Case and his wife, Hattie C. Case, covering certain lots in the City of Sheridan, then owned by said Sterling P. Case and upon which he resided with his wife and their minor child, Dott Case. It was given to secure the payment of a promissory note of the same date, executed by said Sterling P. and Hattie C. Case, for the sum of $1,000, due and payable one year after date with interest from date until paid at the rate of eight per cent, per annum. On September 14, 1907, said
On October 9, 1907, said Hattie C. Case, upon her application, was, by the proper court in Sheridan county, duly appointed the guardian of said Dott Case, and upon the issuance of letters of guardianship on Oct. 12, 1907, she qualified on that date as such guardian. On said 12th day of October also, she was duly appointed by the same court administratrix of the estate of said Sterling P. Case, deceased, and until her death, which occurred on or about Jan. 28, 1915, Mrs. Case remained the duly appointed, qualified and acting administratrix of said estate and guardian of said Dott Case. After the death of her said husband and her appointment as guardian as aforesaid, and on or about Oct. 31, 1907, Hattie C. Case collected and received upon a fraternal insurance policy or benefit certificate carried by the defendant the sum of $1,000 payable to her under said certificate or policy, and the further sum of $1,000 payable to her daughter and ward, Dott Case, receiving said sums in two New York drafts for $1,000 each. And on that date she deposited the money represented by said drafts in separate accounts in the banking house of the State Loan and Trust'Company at Sheridan, as follows: $1,000 to her personal credit in an account opened in her own name, and $1,000 in a separate account to her credit as guardian opened in the name of “Hattie C. Case, Guardian of Dott Case”.
In April, 1910, the said Hattie 'C. Case, as administratrix aforesaid, filed an inventory and appraisement of the estate of said Sterling P. Case, deceased, whereby it appeared that the entire estate consisted of two lots in the original town of Sheridan and a dwelling house and other improvements thereon, upon which the decedent and his family resided at the time of 'his death, the same property covered by the mortgage aforesaid, and that it was appraised at the sum of $5,000. It is alleged in the petition and not denied by the
It is also alleged and not denied that after the death of said Hattie C. Case, and on the 13th day of February, 1915, by an order of said court in Sheridan county, one D. B. Bethurem was duly appointed guardian of the person and estate of said Dott Case, and was the duly appointed, qualified and acting guardian of the person and estate of the said minpr at the time, of the commencement of this suit. The said fact of his appointment was also shown by the introduction and admission in evidence of the petition for said appointment, the order therefor and the letters of guardianship issued thereon. It was. alleged and admitted by the answer aforesaid that after the death of Hattie C. Case, one J. L. Stotts was appointed as administrator de bonis non of the estate of Sterling P. Case, deceased, and that Eff Sharp was duly appointed administrator of the estate of said Hattie C. Case, deceased, and that each of them duly qualified and was such administrator at the time of the commencement of this suit.
Thereafter, on April 3, 1915, this suit was brought by the said D. B. Bethurem, as guardian of the estate of said Dott Case, against said J. D. Stotts, administrator of the estate of Sterling P. Case, deceased, Eff Sharp, administrator of the estate of Hattie C. Case, deceased, and Samuel I. Gilpatrick and Hiertha K. Gilpatrick as defendants; the petition alleging, with reference to the two last namied defendants, that on or about November 19, 1914, the said Hattie C. Case pretended to make, sign, execute and deliver to said Samuel I. Gilpatrick and Hertha K. Gilpatrick, a deed for the said lots above mentioned and pretended to convey thereby all of said property with the improvements
After the suit was commenced, it having been made to appear that said D. B. Bethurem had died on or about December 12, 1915, and that George W. Perry had been duly appointed in his place'as guardian of said Dott Case, an order was regularly entered substituting the said Perry in his capacity as guardian as plaintiff in the action. J. L. Stotts, as administrator aforesaid, filed an answer, but there was no answer or appearance by the administrator of the estate of Hattie C. Case, deceased. And on the trial the only parties represented in opposition to the plaintiff were the said Saníuel I. Gilpatrick and Her'tha K. Gilpatrick.
The petition alleges that Hattie C. Case, after her appointment as guardian as aforesaid, and without any order or authority from the court, used the sum of $1,000 of her ward’s money in paying and causing the discharge of the mortgage aforesaid. To sustain the averment of the petition in that respect evidence was introduced to show the fact of the payment of the note secured by the mortgage on November 13, 1907, and the discharge of the mortgage of record on November 14, 1907, and further evidence for the purpose of showing, and tending to show, that the money used in so paying the note and mortgage was the sum of $1,000 aforesaid received by Mrs. Case on Oct. 31, 1907, in her capacity as guardian for her daughter, and deposited in the hank to her account as guardian. Upon the evidence so introduced, nó evidence having been offered by defendants, the court found generally for the plaintiff and against the defendants, and, specifically, that on November 13, 1907, the said Hattie C. Case, then the guardian of the estate of said Dott Case, and having in her possession the sum of $1,000 belonging to her said ward, took and used the same, but without any authority from said court, to pay off the said mortgage and note, causing thereby the discharge of the mortgage of record. That at the time of the
The evidence to show that such payment was made by Hattie C. ’Case and by the use of her ward’s money consists of the following: Duplicate deposit slips were introduced showing the deposit on Oct. 31, 1907, by Hattie C. Case of a New York draft for $1,000, and* also the deposit on the same date by “Plattie C. Case, Guardian of Dott Case”, of a New York draft for $1,000. These slips were identified by the testimony of the officer of the bank who made them out, and he testified also to the fact of said deposits. Certain sheets taken from, the ledger of the bank were introduced showing the personal account of Hattie C. Case and her account as guardian of Dott Case. It appeared thereby that the only entries in the latter account consisted of an entry showing the deposit on Oct. 31, 1907, of $1,000 and the payment of a check for a like amount on November 14, 1907, balancing the account. Pier personal account contained several entries showing, first, the deposit of said sum of $1,000 on Oct. 31, 1907, and, thereafter, a few deposits from time to time of much smaller amounts, aggregating $370, or a total credit on the account of $1,370, and several debit items paid by the bank between November 14, 1907, and March 13, 1909, varying in amount from $20 to $240, the last item being $240 and balancing the account on March 13, 1909. There were two checks charged against this ac
The plaintiff also introduced a check' book appearing to have been one used by Mrs. Case, containing several blank checks of said bank and a few stubs with memoranda of other checks torn out. Upon the first stub was entered the number “1”, and date “Nov. 13, 1907”, amount “1000” in the column for dollars, and the words “Pay to Barr for mortgage”. The second stub was also numbered “1” and dated November 13, 1907, and indicated that the check was for $80, and contained the words “Pay to J. C. Barr for Mortg”. The words “Pay to” and “For” were printed on each stub, the others written. The next stub, which has no connection with this particular matter, and is important here only because it is numbered “2”-, is also dated Nov. 13, 1907, states that it was for $150, and was apparently written by the same person as the other two. In connection with this check book, it was first attempted to be shown that the memoranda on the first two stubs were in the handwriting of Mrs. ’Case. But the witness who at first so testified changed his testimony upon further consideration, and we think it appears from the evidence that the writing on said stubs was by somebody other than Mrs. Case, though probably by somebody for her and at her request at the time of drawing the checks. The check for $1,000, represented by the first stub, and paid out of the account in the bank in the name of Mrs. Case as guardian, appears to have been lost, for it could not be found either among the papers of Mrs. Case, her successor as guardian, or the bank.
In our opinion, this evidence, if it stood alone, would be sufficient to sustain the finding of the court as to the use of the ward’s funds. Aside from the coincidence of the dates of the payment of the note and the -check for $1,000, as shown by the stub aforesaid, the fact of the payment of a
But that is not all of the evidence upon the subject. In addition thereto, the officer of the bank who had testified to the deposit slips and ledger sheets aforesaid testified to conversations with Hattie C. Case with reference to the payment
It is contended that this testimony of Mr. Zullig and Mr. Marvin as to the conversations with Mrs. Case were not received in evidence as against the plaintiffs in error and that such evidence should not be considered. It appears that when the first question with reference to the matter was asked of Mr. Zullig, viz: “Did she ever say anything to you about the mortgage known as the Barr mortgage?” the question was objected to as incompetent, and the court said: “It may be admitted as against' the administrator of Hattie C. Case, but not against these defendants, the Gil-patricks.” No other objection was made during Mr. Zullig’s testimony upon that subject. When Mr. Marvin was asked if he ever1 had any conversation with Hattie C. Case with reference to the mortgage, that question was also objected to, the court said: “It may be admitted in accordance with the ruling on the other question.” This remark of the court could only have had reference to the like question previously propounded to Mr. Zullig. In Mr. Marvin’s direct examination also no further objection was made to the remainder of his testimony on the subject. If the record had stopped there we would be inclined to think that court and counsel might have understood that the testimony with
But, as above stated, the only defendants appearing at the trial were the two Gilpatricks, plaintiffs in error here, and notwithstanding that the evidence of said conversations had been admitted as against the administrator only, and not as against these plaintiffs in error, their counsel cross-examined Mr. Marvin at length about the conversations he had testified to, and upon such cross-examination said witness repeated substantially what he had said in his direct examina1 tion concerning the matter. Under the circumstances, the practical effect of such cross-examination by the plaintiffs in error was to make the witness their own, and they cannot, therefore, properly complain that the evidence brought out thereby is not in the case as against them.
'Concluding that the evidence was sufficient to sustain the finding of' the court with reference to the use of the ward’s money to pay the note and mortgage in question, and that being the only question raised upon the merits, the judgment will be affirmed. Affirmed.
