98 So. 635 | Ala. | 1923
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *403 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *404
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *405
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *406 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *408 The contest in equity was of the probate of the will of Mrs. Mary Lewis Martin, deceased. That instrument bore date of February 11, 1918, and testatrix died on December 29, 1920. The submissions are upon several motions to strike the respective bills of exceptions and dismiss the two appeals, and on the merits.
The two certificates of appeal are, respectively, of date March 29, 1923, reciting the giving of security for costs (November 27, 1922), and its due approval, and that notice was given of the appeal; and of date May 18, 1923, filed here May 24, 1923, reciting the giving and approval of security for costs May 18, 1923, and that notice of the appeal was given.
Questions sought to be presented by the respective motions to dismiss the appeals and to strike the bills of exceptions are: (1) To review the decree overruling demurrer to the bill as amended — decree rendered on November 30, 1921; (2) to review the several rulings made, and to which exceptions were reserved on the jury trial at the June term, 1922; (3) to review the overruling of the motion for new trial filed July 6, 1922, and continued and heard, and decree rendered November 11, 1922; and (4) to review the final decree (on verdict of jury) rendered on February 16, 1923.
An appeal is taken to an appellate court, not as a vested right, but by the grace of a statute (Woodward Iron Co. v. Bradford,
Statutory provisions of the manner of taking an appeal are:
"That any appeal taken under the provisions of chapter fifty-three (53) of the Code of Alabama of 1907 must be taken within six months from the rendition of the judgment or decree, and shall be shown in the following manner: (a) When no bond or security is required the filing of a written statement setting out the parties and court, signed by the party appealing, or by his or her attorney of record that an appeal is taken from the judgment or decree in the case. (b) By giving security for the costs of the appeal to be approved by the clerk or register, or court. (c) By giving and having approved a supersedeas bond conditioned as required by law." Gen. Acts 1915, p. 711, § 1.
It follows that the appeal is taken where security for costs is lodged with the proper officer, if it is thereafter approved by him. Jacobs v. Goodwater Graphite Co.,
The general provisions of the act of 1915 (Gen. Acts, p. 711) as amended by the act of 1919 (Gen. Acts, p. 84) did not change the special provisions of sections 2838 and 2856 of the Code, for taking an appeal from a ruling on demurrer to a bill in equity and certain other interlocutory orders before final decree, when such ruling did not dismiss the bill of complaint. Pepper v. Horn,
It should be observed that the bill filed by John T. Martin (the husband) had for its object the contest of the will of his deceased wife, and was sought to be maintained under sections 6207 and 6209 of the Code. The right of trial by jury of such controverted issues of fact was duly demanded, and had as a matter of right under the statute (Code, § 6209), and not by the grace of the court. A. T. N. Ry. Co. v. Aliceville Lbr. Co.,
The verdict, however, was not the same as the decree of the court, which must follow or be pursuant to the verdict. That is to say, the entry of record of "the mind or determination of the court audibly expressed" is the judgment or decree of the court, and not the verdict. Hall, Adm'r, v. Hudson, Adm'r,
And the ministerial act of entry record or registry of the "determination" of the court must be performed before that "determination" becomes the judgment, decree or order thereof (3 Black. Com. 24; Zaner v. Thrower,
The motion to dismiss the first appeal contains, among other grounds, the averment that it was not taken within 30 days from the date of the rendition of the decree overruling respondents' demurrer to the bill as amended, or, if (the appeal was) attempted to be taken from the final decree of the court (entered on February 16, 1923), it preceded that decree.
The decree overruling demurrer to the bill as amended (not dismissing the bill) was entered on November 30, 1921; the appeal first sought to be taken by giving "security for the costs * * * approved by the clerk or register," was filed and approved on the 27th day of November, 1922, and notice thereof duly given adverse parties on December 13, 1922. As respects this decree overruling demurrer to the bill, the same will not be reviewed by the appeal taken before the rendition of the final decree. It was not taken within 30 days from the date of the rendition of the decree on demurrer. Pepper v. Horn,
Had that appeal not been taken under section 2838 and the General Acts of 1915, page 722, by giving first security for costs (November 27, 1922) before final decree, the overruling of such demurrer might be reviewed under the provisions of section 2837 of the Code. Wynn, Adm'r, v. Tallapoosa County Bank,
How has the abandonment of the first appeal affected the right of review of the order or decree overruling respondents' (appellants') motion for a new trial? A general order of continuance does not keep a motion for a new trial or rehearing alive; if the motion is not called to the attention of the court within the term, and is not duly continued, the court may not entertain such motion at a subsequent term against the due objection of the adversary party. Shipp v. Shelton,
In law cases the rule of the circuit court as to motions in arrest of judgments and new trials (Code 1907, p. 1522, § 22, first given place in Code 1886, p. 808, § 22) obtaining before the consolidation of the law and equity courts (Ex parte City Bank Trust Co.,
"Notice of Motion in Arrest and for New Trials; Grounds andAffidavit. — Reasons in arrest *411 of judgment, and reasons for new trial, and the affidavits in support thereof, if any are relied on, shall be filed with the clerk, and notice thereof be given to the adverse party one day before the argument. If the cause is tried on the last day of the term, the notice shall be given when the motion is entered. The party making such motion is entitled to the opening and conclusion of the argument. All such motions not acted on or continued by order of the court are to be considered as discharged of course on the last day of the term."
This was in line with decisions that, where an application for a new trial or rehearing is not rested on section 5371 or section 5372 of the Code of 1907, the term of the court in which the case was tried is the limit within which such motions may be made (Fitzpatrick's Adm'r v. Hill,
We have statutes declaring judgments and decrees to be beyond the control of courts after the expiration of 30 days from rendition (Gen. Acts 1915, p. 707, § 3; Engle v. Bronaugh,
In the instant case (in equity) a jury trial was had as a matter of right, and the verdict rendered at the June term, 1922, in favor of complainant (appellee). No final decree was rendered thereon at such term, nor motion made for a new trial or rehearing within the term. We take judicial knowledge of the fact that the "June term" of said court terminated on June 24; that the ensuing term began on July 10, and continued to the last Saturday before Christmas, 1922; and the next ensuing term began on the first Monday in January, 1923. Riley v. State,
The statute, providing that, after 30 days from the date on which a judgment or decree is rendered, "the court shall lose all power over it, as completely as if the end of the term had been on that day" (Gen. Acts 1915, p. 707; Howard v. Ala. Fuel Iron Co.,
After the first appeal — from ruling on demurrer and on motion for a new trial — the lower court should have suspended action in said cause to await a decision here. This was not done; and a final decree was entered on the verdict of the jury on February 16, 1923, from which the second appeal was sought to be taken by the giving of security for costs, pursuant to the provisions of Gen. Acts 1915, pp. 711, 722.
The verdict of the jury rendered at the June term, 1922, not being duly incorporated into a final decree before the adjournment of the court, the case, as a pending cause, was continued by operation of law, with the expiration of the June term, to the next ensuing term (Greer v. McGehee, 3 Port. 398; Ex parte Driver and Murray,
After the hearing on appeal from the ruling on the motion for a new trial (heard without objection on July 22, 1922), further action was had in said cause before that appeal was perfected and decided by this court. Of this the record recites: "Note of testimony and request for submission by complainant," of date December 14, 1922, and "Note of testimony and request for submission by respondents," on January 6, 1923.
That such submission, pursuant to the respective notes of testimony of the parties, was had is shown by the certificate and notation of the clerk and register of the date of January 6, 1923. Gilliland Merc. Co. v. Sinclair,
It should be observed of the complainant's note of testimony that it embraced ruling on demurrer, submission of issues of fact to the jury and verdict thereon, and the judgment of the court overruling motion for a new trial, and on pleadings, proof, and charges of the court indicated; and that the note of testimony of respondents, dated January 6, 1923, was on (1) "several demurrers to the bill of complaint as last amended," the (7) "motion for a new trial as said motion is set out in and made a part of the bill of exceptions," (9) the separate and several "ground of the motion for a new trial," and (16) "the motion for a new trial and to set aside the verdict of the jury and vacate the same, and with which said motion there is submitted the bill of exceptions and transcript of the testimony including the several exceptions to rulings on the evidence during the trial before the jury, together with the grounds on which said rulings were based, and which said evidence and rulings and grounds therefor are set out as they occurred during said trial before the jury in said bill of exceptions and transcript of testimony, and to which reference is hereby expressly made, and the same are made a part hereof as if set out herein, each ruling and exception to be taken and considered separately and severally." This occurred before the return of the first appeal to this court — taken, as we have noted, on November 29, 1922.
In Winn v. Dillard,
It would appear that, where there has been given no supersedeas of the judgment (Cartlidge v. Sloan,
It follows that the appeal taken, November 29, 1922, was abandoned by the failure to perfect the same in this court before the voluntary and inconsistent procedure in the lower court, by consent of the respective parties in adverse interest. That inconsistent action or procedure was the submission for final decree, appealed from, that was perfected on May 18, 1923, within the time prescribed by law.
The bill of exceptions was duly presented *413
on May 15, 1923, within 90 days from that day on which the final decree was rendered — February 16, 1923. Counsel express doubt whether the bill of exceptions should have been presented within 90 days from the rendition of the verdict of the jury, or from the date of rendition of the decree. We understand the effect of the decisions of this court to be, and so announce, that the date referred to in the statute (Code 1907, § 3019), within which the bill of exceptions must be presented, is that on which the formal judgment or decree is rendered, and not the date on which the verdict of the jury is returned into court. Liverpool, etc., Co. v. Lowe,
The motions to strike the bill of exceptions and to dismiss the appeal from the final decree are overruled.
What is reviewed by the last appeal? It is recited in the bill of exceptions of a resubmission on the motion for a new trial on the submission for final decree:
"At the submission of this case for final decree on the pleadings and proof, and in open court, the respondents resubmitted to the court the motion for a new trial hereinabove in this bill of exceptions set out in support of said motion, and then and there insisted upon said motion. The court thereupon overruled said motion, and to this action of the court in overruling said motion the respondents there and then in open court duly reserved an exception.
"Wherefore, the respondents retender this their bill of exceptions, with the addition thereto next above set out, and pray that the same may be signed and sealed and made a part of the record in this cause, which is accordingly done in term time, and within the time fixed by law on this the 15th day of May, 1923.
"J. C. B. Gwin, Judge Presiding.
"Re-presented this the 15th day of May, 1923.
"J. C. B. Gwin, Judge Presiding.
"Refiled May 18, 1923.
"E. C. Himes, Deputy Clerk."
Chancery rule 81, supra, limits "rehearings of a decree" to the term at which the decree was rendered. The rehearing sought in this case was an order for a new trial to be had before another jury. Such was the result sought to be attained by setting aside the verdict of the jury returned at the June term, 1922. The rules have been applied in equity, as to making such motions (Engle v. Bronaugh,
The several rulings to which exceptions were reserved on the trial are duly presented by the bill of exceptions, and will be considered in the order followed by counsel in argument. A. T. N. Ry. Co. v. Aliceville Lumber Co.,
The certification of the bill of exceptions by the judge who presided at the trial, as prescribed by law for a bill of exceptions, was a sufficient compliance with the provisions of the statute that the judge or chancellor may require the testimony taken orally to be transcribed, etc. Gen. Acts 1915, p. 705. However, the evidence was in the breast of the court as so certified in the bill of exceptions. It was submitted upon by the parties as required by the rules in a chancery case (Brassell v. Brassell,
Assignments of error not insisted upon are not considered. Georgia Cotton Co. v. Lee,
The assignments of error are from 1 to 326, inclusive, and we have considered the same in detail, though it will not be necessary to treat separately each assignment. Many charges were requested — given and refused. These are not numbered, and are difficult of reference. We have employed the letters of the alphabet to indicate the given charges of the complainant-contestant; respondents' refused charges are numbered from 1 to 18, inclusive, and their given *414 charges are indicated as S to Z, and A-1 to L-12, inclusive.
Given charge A for complainant conforms to the statement of the law to be found in Coghill v. Kennedy,
The giving of charges G, I, and O is challenged. The statements of law contained in said charges are supported by the authorities. Miller v. Whittington,
Given charge N is challenged. It was justified in the giving by Brancroft v. Otis,
Given charge R was in accord with the announcements contained in Schieffelin v. Schieffelin,
The general charges requested by respondents (proponents) on the several grounds of contest were properly refused. The evidence was sufficient to warrant the submission to the jury. Howell v. Howell (Ala. Sup.)
The question of undue influence was sought to be eliminated or ignored in the request for refused charge 7, notwithstanding respondents' charge V, that "the burden of proof is on the contestant to reasonably satisfy you by the evidence that the execution of the will in question was procured by undue influence exerted on Mary Lewis Martin." The requested charge was, at least, confusing. There was no error in the refusal.
Charge 8, refused to respondents (proponents), is incomplete; the elements required under said issue are correctly indicated in given charge Z.
Respondents' charge 9 was properly refused. Miller v. Whittington,
Charge 12 is argumentative, and invades the province of the jury. Charge 13 ignored a ground of contest — that the will was procured by the undue influence charged. The testamentary capacity of testatrix was not the sole issue of fact submitted for the decision of the jury. Charge 15, ignoring the issue of testamentary capacity, was properly refused. These charges (12, 13, and 15) confused the issues being submitted to the jury under the two phases of the evidence.
Charge 18 omits the requirement that the testatrix knew, at the time the will was executed, the manner in which she wished to dispose of her property. Taylor v. Kelly,
It was error to instruct the jury that they might not find the will was procured by *415
undue influence unless it "amounted to coercion orforce." (Italics supplied.) Miller v. Whittington, supra. The use of the word "force" was evidently a misprision for fraud. Mullen v. Johnson,
There was no error in giving contestant's charges B and N. Gaither v. Phillips, supra. Charges C, K, and L are in accord with announcements contained in Coghill v. Kennedy,
Charge 11 was properly refused, as being incomplete and confusing. It failed to define the "other things" testatrix was required to know and appreciate in order that she might possess testamentary capacity. In Johnson v. Johnson,
"The oral charge of the court, in defining mental capacity requisite to make a will and undue influence that avoids a will, employed the phrasing found in many decisions here. The oral charge was not subject to the criticisms taken by appellants."
The charge is not a full statement of what constitutes testamentary capacity. Testatrix must not only have mental capacity "to know the persons to whom she wished to will her property," but to "know and understand the nature and consequences of the business to be performed, and to discern the simple and obvious relation of its elements to each other," and to remember the property she is about to will. West v. Arrington,
Under the evidence there was no error in refusing charges as to partial probate. The testatrix was a wife and mother, dealing with all of her properties, and devising and bequeathing the same to relatives, some of whom were more distant than the relation of husband and child. There was or not a valid disposition, as the case may be, and it was a question of fact for the jury. We are of the opinion that no error was committed.
We might not have considered these charges, since they were numerous and not indicated by numbers or letters to make them of ready access. It was required that we locate the charge from the brief to the assignment of error, then to the page of the transcript. However, we have tried to consider each charge to which specific objection and argument referred. Gibson v. State,
As to the many rulings on evidence, they have all been examined, and it is not deemed necessary to discuss each in detail. Appellants' counsel say:
"John T. Martin, the complainant in this case, was incompetent to testify as a witness, he being interested in the result of the suit, and a general objection was sufficient to raise the point. Walker v. Walker,
The last authority cited is by the Court of Appeals, and the question for decision there was whether a proper predicate had been laid for the introduction of a confession of the defendant. And the decisions in Walker v. Walker's Executor,
The deputy clerk in a probate office has the authority given by statute. Gen. Acts 1915, p. 549; Hines v. Hines,
"Judge Stiles was not present in court at the very moment it was written; no, sir. I, as chief clerk, representing Judge Stiles, am here at all times, and have the custody of all papers."
The record then further recites this statement of the witness (Sam T. Huey):
"The bench notes were made by Judge Stiles himself, and also the proof of the will and taking of the affidavits of the witnesses; and also the order on the back was made by Judge Stiles. Mrs. Patton is what is designated as the minute clerk in my office."
No reversible error intervened.
Questions as to George Lewis Martin were offered as tending to show the attitude of his mother toward him, and called for relevant testimony. Under section 2 of the will, was this a natural provision to be made for a child, or were the circumstances such as to be given expression by a mother possessing testamentary capacity, or did a vitiating and undue influence intervene in the making of the will? Such inquiries cover a wider field than that of an ordinary litigation. Coghill v. Kennedy,
The illness of testatrix, and that of her family, the time, nature, and duration thereof, were subjects of inquiry under an issue of testamentary capacity. This evidence tended to show how and to what extent testatrix was affected thereby. Coghill v. Kennedy,
The fact that testatrix did take her own life made pertinent her declarations relative thereto, and her threats to end her existence. Grand Lodge, etc., v. Wieting,
The family, social, and business relations of testatrix with her brother, the nature of the trust and confidence she reposed in him, were proper subjects of inquiry.
It was not error to permit complainant to show that, as husband of testatrix, he did not know of the existence of the will until after the death of the wife, and was then informed by his brother-in-law. It was material evidence, with other facts, under the issue of undue influence. Coghill v. Kennedy, supra.
The letter written contestant by testatrix immediately before taking her life, and two or three years after the date of the will, is not remote, when considered with the other evidence, as tending to show her physical and mental condition, and as affording a reasonable inference the jury might draw of the affection she had for him. This evidence was competent as tending to show whether the will was a natural or unnatural disposition of her property, or whether testatrix possessed testamentary capacity at the time the will was executed. Howell v. Howell, post, p. 429,
The feeling of resentment of the father (contestant) towards the son was beside the issues, and not permitted to be inquired about. However, the son's conduct and its effect on testatrix was competent.
The rule applied in Gibson v. Gaines,
The circumstances of the death of Mrs. Martin and her letters in question were for consideration, with the other evidence, as tending or not to show her physical or mental condition when the will was made, and whether or not that condition was such as made her the subject of undue influence on the part of one she had trusted in health, or whether she possessed testamentary capacity.
There was no error in the introduction of the evidence of Dr. Waldrop, Dr. Edmundson, Mrs. Orr, Mrs. Fenwick, Mrs. Allen, Mrs. Marsh, Mrs. Watkins, Mrs. Lockhard, Mrs. Mayer et al. The proper predicates were laid for experts and nonexperts, and the rules of law obtaining as to this need not be repeated. Woodward Iron Co. v. Spencer,
We have examined the several objections to the evidence of Edmundson, Mrs. Mayer, Mrs. Allen, Mrs. Orr, Mrs. Marsh, Mrs. Fenwick et al., and we find no reversible error. What Mrs. Orr testified testatrix stated to her of the interview with her brother about changing the will was pertinent and material under both issues of the contest. Coghill v. Kennedy,
The will bears date of February 11, 1918, and testatrix died December 29, 1921. One of proponents, testifying, was asked by his counsel: "What did Mr. Martin have to say about it (the will) at that time" (which was after the death of testatrix), and was not permitted to answer. There was no error. The rights of the parties were fixed, and such discussion was immaterial to the issue of testamentary capacity *417 or undue influence. There was no error in overruling proponents' objection to the question, on the cross-examination of Mr. Lewis: "Did you discuss this will with John T. Martin at any time from February, 1918, until Mrs. Martin's death?" and motion to exclude the answer, "Never." It was a slight circumstance elicited by a proper cross-examination, in the nature of an admission against interest, that was not error to have the jury consider under the issue of undue influence and evidence offered in support thereof.
Mr. Lewis, testifying, detailed his business relations with testatrix (made reference to a private transaction had by him with complainant), and said:
"Mr. Martin has testified here about a lot and the sale of it; he placed the lot, located at Wylam, Ala., in my hands for sale, and gave me a price to sell it for; I sold it for him for $150 more than he asked for it, turning the morning [money] over to him less $50, I think it was, that he owed me; he asked me to keep that back, and I took it out; that was money that he had borrowed from me prior to the sale. I did not charge Mr. Martin anything as commission on the sale. No part of that money came into this fund of Mrs. Martin's."
Under the rule declared in Bank of Phoenix City v. Taylor,
"Thereupon the respondents offered to introduce in evidence the deposit slips in favor of John T. Martin, on February 14, 1912, showing the amount received for a lot, in Mr. Lewis's handwriting, and we offer in addition thereto Mr. Martin's checks and the account with the bank, showing this account closed out and settled.
"Thereupon the complainant objected to said introduction; the court sustained said objection, and to this action of the court the respondents there and then, in open court, duly reserved an exception."
A careful reading of the testimony of Mr. Martin fails to disclose testimony or a reference to a sale of the lot as stated by Mr. Lewis. In this last ruling on evidence there was no prejudicial error committed. Complainant did not first go into this field of irrelevant evidence. The respondents, having done so by reference, authorized the denial or reply. There must be an end to such immaterial inquiry, and there was no error in declining to permit the prolongation of the same by cumulative evidence afforded by the bank account or deposit slip showing such deposit to the account of Mr. Martin. Pertinent authorities on this character of evidence are 5 Jones on Ev. (2d Ed.) § 873; Bank of Phoenix City v. Taylor,
Exception was reserved to the whole of the oral charge. That charge, taken as a whole and in connection with the given charges, was free from error to reverse. The court had the right to state generally the respective theories of the parties and issues of fact, under the several grounds of contest and the evidence before the jury. The oral charge, as supplemented by many given charges defining testamentary capacity and undue influence that vitiates a will, was without error. It is insisted that the oral charge was insufficient and submitted questions of law to the jury. Such objection should have been made in the court below, and proper instructions requested to cover the questions of law thought to be necessary or not sufficiently defined or stated to the jury. Such are the rulings of this court, where the oral charge was misleading. T. C. I. R. R. Co. v. Williamson,
Finding no error in the record, the decree of the circuit court in equity is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.
Addendum
The original opinion is now corrected pursuant to suggestion by counsel that the local statute fixed the term of court for the Bessemer division of the circuit court. Local Acts 1919, p. 62. Washington v. Waldrop, Clerk,
The date of the judgment on the verdict of the jury in a case like that before us was not the subject of A., T. N. Ry. Co. v. Aliceville Lbr. Co.,
There was appearance in this court, on submission of the case, by all necessary parties. L. N. R. Co. v. Shikle,
"(326) The trial court erred in rendering the final decree in the absence of a note of testimony as to the two minors, David L. Rosenau, Jr., and Margaret Rosenau."
Our attention is not called to any assignment of error challenging the regularity of the proceeding in the lower court as to respondent George Lewis Martin's failure to submit on a note of testimony, or the lack of any pleadings as to him.
The record contains no request for submission for final decree or note of testimony for the said minors or George Lewis Martin. However, there was ample evidence to support the decree pursuant to the verdict of the jury, and of this due submission was made by the other parties, respectively, and note of testimony thereof by the complainant and the respondents — other than the minors and George Lewis Martin. In the cases cited (Lundy v. Jones,
We have re-examined the entire evidence given by Mrs. Marsh and Mrs. Fenwick, objections reserved thereto, and motions to exclude, and find that no reversible error was committed by the court in permitting these witnesses to give an opinion as to the sanity or insanity of testatrix. Woodward Iron Co. v. Spencer,
The question of competency to answer the questions indicated rested upon the sound discretion of the court. Wear v. Wear,
It was not our intention, in the opinion rendered, to convey the idea that exceptions were not duly taken to the several portions of the oral charge, and as specifically indicated *419 in the bill of exceptions. We have again considered said exceptions, and, when the oral charge is considered as a whole and in connection with the many given charges, there was no reversible error in the oral charge, and the jury were sufficiently instructed.
The application for rehearing is overruled.
Overruled.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.