20 Ind. App. 447 | Ind. Ct. App. | 1898
The appellee, Emma Schendorf, filed her claim against the estate of her deceased husband, Nicholas Schendorf, of which the appellant is the administrator, with the will annexed. The statement of claim consisted of two paragraphs, and the cause was tried without an answer, the finding for the appellee showing by the amount thereof that the court found for her upon both paragraphs of the statement. The appellant’s motion for a new trial was overruled.
There is no dispute as to the right of the appellee to recover upon the first paragraph of her statement of claim, but the question is presented as to whether the amount of the recovery was too large to the extent of the sum allowed under the second paragraph, and it is urged that there was error in the introduction of certain evidence in support of that paragraph. It is suggested on behalf of the appellee that the bill of exceptions, without the presence of which in the record these matters could not be considered, cannot properly be regarded as part of the record.
The motion for a new trial was filed and was overruled at the term at which the trial was had and the finding was made. On the day on which the motion was overruled, and at the same appearance of the parties, being on the 5th day of March, 1897, the appellant filed the bill of exceptions containing the evidence. The final portion of the bill, preceding the signature of the judge, is as follows: “And the said defendant now here tenders this his bill of exceptions, and prays that the same may be signed, sealed and
It was held by this court in Noblesville, etc., Co. v. Teter, 1 Ind. App. 322, that, “under the provisions of the code of 1881, a bill of exceptions may preserve and bring into the record exceptions taken at the term at which it is signed and filed, and evidence given, and exceptions to rulings made, on the trial of a cause in which a motion for a new trial has been overruled at the term at which the bill is signed and filed, though the entry does not show that any time was allowed for the presentation of the bill, and the date of presentation be not stated in the bill. This court in such case will presume that time within the term for the presentation of the bill to the judge was given by parol at the proper time, and that the bill was presented to the judge within the time so allowed, and will regard the purpose of the statutory requirement that the date of presentation shall be stated in the bill as having been accomplished.” We cannot sustain the appellee’s objections to the bill before us.
The claim was filed on the 15th of October, 1896. The second paragraph of the statement of claim was based upon a promissory note not governed by the law merchant for $180.00 with interest at 8 per cent, per annum and attorney’s fees, dated January 23, 1892, payable two years after date, made by the decedent to the appellee. It was alleged in the statement of
The statute, section 506, Burns’ R. S. 1894 (498, Horner’s R. S. 1897), provides, that 'Tn suits or proceedings in which an executor or administrator is a party, involving matters which occurred during the lifetime of the decedent, where a judgment or allowance may be made or rendered for Or against the estate represented by such executor or administrator, any person who is a necessary party to the issue or record, whose interest is adverse to such estate, shall not be a competent witness as to such matters against such estate.” In section 510, Burns’ R. S. 1894 (502, Horner’s R. S. 1897), it is provided that in any case referred to in section 506 (498), supra, “any party to such suit shall have the right to call and examine any party adverse to him as a witness, or the court may, in its discretion, require any party to a suit or other person to testify, and any abuse of such discretion shall be reviewable on appeal.” In Milam v. Milam, 60 Ind. 58, which was a claim against a decedent’s estate upon a note alleged to be lost, the action of the trial court in permitting the claimant to testify, over objection, to the loss of the note, and that it was lost by her out of her own possession, was sustained upon appeal. The statute then provided that in such case, “neither party shall be allowed to testify as a witness unless required by the opposite party or by the court trying the cause.”
The court referred to the general rule of the common law that parties were incompetent as witnesses, and to the fact that there were exceptions to that rule on account of necessity, to prevent a failure of justice, and quoted from Greenleaf on Evidence a passage, a
It is contended further, on behalf of the appellant, that there could be no recovery upon the note because of the manner in which it was shown to have been destroyed by the act of the party now suing upon it. It is quite plain upon the whole evidence that there ought to be a recovery upon the second paragraph of claim, if there was legitimate proof of the note. Whatever may have been the rule at one time, not every suit upon a destroyed note is now defeated upon the mere reason that its destruction was the voluntary act of the party seeking to recover upon it.
In Riggs v. Tayloe, 9 Wheat. 483, it was said: “It is further contended, that it appears from the plaintiff’s own showing, the destruction or loss of the writing was voluntary, and by his default; in which case, he
The testimony of the appellee showed that in destroying the original evidence, she acted under the influence of strong feeling, caused by the cruel and unmanly treatment to which she had been subjected by the maker of the note, her husband. It does not appear that the note was paid in whole or in part. She took it one day when it came due and asked her husband to pay her. Her request was. met with unbear