Ramsay v. Glass

9 Gill 56 | Md. | 1850

Magruder, J.,

delivered his opinion as follows:

More than one exception is to be found in the record in this case. The appellee, however, objected only to what took place while George Rogers was under examination. He spoke of various conversations he had had with the deceased, and then of one conversation so far as he could recollect it. Whereupon he Was asked, whether the conversations of the deceased Were connected or rational? To this the caveatees objected, but the court overruled the objection. No exception was taken to this, nor does it appear what was the answer of the witness, or, indeed, that he did answer the question. Of course we are unable to tell whether, if the question was answered, the caveatee could possibly have been injured by that answer.

The exception, after stating that the court overruled the objection, proceeds: “being of opinion and so declaring, that a witness, who had a conversation with the deceased in his lifetime, after detailing that conversation, so far as he recollects, may be required to say whether, in his opinion, such conversation was coherent or otherwise.” To which opinion of the court, the caveatees, by their counsel, prayed leave to except.

In order to set aside, a verdict obtained in any case, it must be made to appear to the appellate court, that the court below had given to the jury an instruction which was erroneous, and that by reason of that error the verdict might have been obtained.

As I read this exception, the opinion of the court, of which it complains, is not in truth an instruction to the jury, but a reason for overruling the objection of the caveatees—a reason addressed rather to the counsel than to the jury, and if so, of its correctness this court is not to judge.

It appears, too, in this case, that there were six issues tried, and the verdict of the jury was for the caveators on all of them. The testimony of the witness alluded to may have had some influence upon the minds of the jury, in deciding some of the issues, but there are other issues of themselves fatal to the paper offered for probate. The jury have said that this paper was procured by fraud, and if so, the verdict ought not to be disturbed, even although testimony only applicable to other issues ought to have been excluded.

Without undertaking then to decide in this case, how far the opinions of witnesses are to be admitted in the trial of issues touching the sanity of a deceased person, I cannot think that in this case, and upon the exception taken as above, this verdict ought to be set aside.

Dorse v, C. J.,

delivered the opinion of this court.

Prom the view we have taken of this case, it is unnecessary to examine the question, whether the opinion of the court, as stated in the bill of exceptions, and from which the present appeal has been taken, be right or not? To entitle an appellant to a reversal of a judgment, on the ground that there is error in the opinion of the court, it must appear to the appellate tribunal, that he has been or may have been injured thereby. And such liability to injury must be apparent upon the face of the record. In the record before us no such liability is discoverable. It is not stated that any testimony was given to the jury, on which the opinion of the court could have had the slightest operation. The bill of exceptions does not shew, that any witness gave testimony, on which the opinion of the county court could have had the most remote influence or bearing. It is not stated in the bill of exceptions that any witness testified to the jury, that any conversation which he had with the testator was, in his opinion, “coherent or otherwise.” The opinion expressed by the court below, therefore, was a mere legal abstraction, that could not have had any influence on the minds of the jury in forming their verdict, and, consequently, no matter how erroneous the court’s opinion may have been, it constitutes no ground for the reversal of its judgment.

To warrant the reversal of the judgment for the reason assigned, this court must assume, without the slightest support from the record for so doing, two essential facts. The first, that a conversation with the testator, detailed by the witness, was, in his opinion, “coherent or otherwise;” and the second fact, that the witness thus giving evidence stated his opinion to be, that the conversation was incoherent. If the opinion of the witness had been that the conversation was coherent, and there is nothing in the record to justify a contrary inference, the testimony would have been beneficial, not prejudicial, to the interests of the appellants, and, of course, furnished them no ground of complaint on the present appeal. Such an extraordinary assumption of facts not appearing in the record, to enable an appellate court to reverse a judgment before it, cannot be regarded as a legitimate inference, and is subversive of every principle of judicial courtesy. For it no authority has been produced, and it is not perhaps too presumptuous to say that none can be found. In speaking of this case as one in which the court below have given a judgment; technically speaking, we are not to be, literally, so understood; but we have thus spoken of it for more familiar illustration, the principles of laws applicable to the trial of issues from the orphans court, and of issues to be followed by judgments, being precisely the same.

On the appeal before us the decision of the county court cannot be reversed, and the finding of the jury upon the issues must be sustained.

JUDGMENT AFFIRMED.

Chambers, J., dissented.