Henrizi v. Kehr

90 Wis. 344 | Wis. | 1895

Newman, J.

Exceptions to the findings must be filed before the expiration of ten days after the service of notice of the entry of judgment, or they are too late to be of any effect. R. S. sec. 2870; Wis. R. Imp. Co. v. Lyons, 30 Wis. 61. But the court may permit them to be filed afterwards. R. S. sec. 2831; Ottillie v. Wœchter, 33 Vis. 252. Such exceptions should be incorporated in the bill of exceptions. Evenson v. Bates, 58 Wis. 24. The appellant’s exceptions are found incorporated in the bill of exceptions without explanation. It must be inferred that the court gave leave, then, to file them. Ottillie v. Wœchter, supra.

The exception is, in form, general. The rule is that where an exception covers several propositions it is a general one and is not available if any one of them is correct. Estate of Kessler, 87 Wis. 660. In this case there was but one material controverted question. That was the mental capacity of George Kehr to transact the business of satisfying the mortgage. If he had mental capacity to transact the business, all the other questions are immaterial. It was then competent for him to satisfy the mortgage, either for a consideration or without a consideration; to take a lease, or to dispense with, it altogether. So there is in the finding only this one proposition to which the exception could be at all pertinent. It is the one proposition which dominates the whole case. If the finding is wrong upon that proposition,, it is wrong also upon the other propositions. So it is held that the exception is sufficiently specific to enable the court to review the evidence upon that question.

It seems quite clear to this court that the finding of the circuit court is against the weight of the evidence; so that the evidence does not support it. The evidence, to the mind of this court, quite clearly establishes the fact that. G-eorge Kehr, by reason of his age and many infirmities, was so greatly impaired in his mental grasp and vigor as that he was quite incapable, mentally, of the transaction of business; so that the transaction involved in this action was-not really his transaction, nor really enacted with his mental assent. This seems to be quite apparent from the transaction itself as narrated by the witness hTehs, who was the notary who drew the instrument, witnessed it, and took the acknowledgment, and who was the only disinterested witness of what transpired. He was employed by Jacob for this purpose. He went to Jacob's house. He testifies: “ Jacob told me what was to be done. George Kehr did not tell me to do anything.” He testifies that he there told Jacob that he doubted if his father was not too weak in mind for the transaction of such business, and that it might make him trouble and lawsuits with the other heirs if they were dissatisfied with it. But Jacob wanted it done, and it was done. The satisfaction was made and recorded. But Jacob did not mention the fact to his sisters, who resided in the neighborhood and were frequently at his house; and they had no knowledge of it until after their father’s death. ÜSTehs testifies that his own opinion was at the time of the transaction, as well as at the time of testifying, that George Kehr’s mind “ was a little short of doing that kind of business.” He seems to be an intelligent and impartial witness. He was present at the transaction itself. His observation of the condition of George Kehr’s mind was of the very-time of the transaction. This is an important element in estimating the importance of his testimony. And he was the«mly disinterested witness who was present during the transaction. The witness Fehl, who had known him since they were boys together in the old country, testified “ he was not right in his sense any more.” To the same effect was the testimony generally of the plaintiff’s witnesses. On the other hand, the witnesses for the defendant testified, in effect, that his mental condition was very fair, and in their opinion he could understand common business transactions. There was no evidence of experts to throw light upon his mental condition.

The whole testimony and circumstances surrounding the transaction produce a strong conviction that George Kehr was not, at the time of this transaction, mentally capable of understanding the nature of the act which he was doing, nor to appreciate its consequences. That the defendant was aware of his defect is evident both by the conversation of the witness Nehs and by the surreptitious manner in which the business was done, and the withholding of information of it from his sisters, who were near at hand and frequently at his house. This all goes to show a want of good faith, and has a bearing, indirectly perhaps, upon the question of the condition of the mind of George Kehr.

By the Gowrt.— The judgment of the circuit court is reversed, and the cause is remanded with directions to enter judgment in accordance with the demand of the complaint.