Johnson, &C., v. Stivers, &C.

• Decision Date: 18 November 1893
• Citation: 95 Ky. 128
• Parties: Johnson, &c., v. Stivers, &c.
• Court: Kentucky Court of Appeals

Page 128

95 Ky. 128

Johnson, &c., v. Stivers, &c.

Court of Appeals of Kentucky.

November 18, 1893.

APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.

ABBOTT & RUTLEDGE FOR APPELLANTS.

HUMPHREY & DAVIE AND SAM CLEAVER FOR APPELLEES.

JUDGE HAZELRIGG DELIVERED THE OPINION OF THE COURT.

By the verdict of a jury in the Jefferson Court of Common Pleas, the paper in contest on this appeal was established as the last will and testament of Mrs. Sarah C. Stevens. The motion of the contestants for a new trial having been overruled, they bring the case here for review, alleging that the court erred in admitting incompetent testimony, and in instructing the jury. They also allege that the verdict is contrary to the law and the evidence, and that they ought to have been granted a new trial because of newly discovered evidence.

Without reviewing the evidence in detail, or discussing the instructions at length, it is sufficient to say —

1. That the evidence complained of was competent. The letters of the testatrix were competent to show her feelings toward Mrs. Stivers, and her intimacy with her; in a general way they bear on her mental capacity and disposition. (See Fuller v. Fuller, 83 Ky., 351; 1 Greenleaf on Evidence, sec. 108.)

2. The instructions of the court properly present the law of the case. The burden was on the propounders to show, by a preponderance of evidence, that the testatrix was of testamentary capacity, and on the contestants to show, by a preponderance of testimony, that she was unduly influenced or coerced, as defined in other instructions. (See Fee v. Taylor, 83 Ky., 259; Porschet v. Porschet, 82 Ky., 93.) The other instructions conform to the law as laid down in Wise, &c., v. Foote, &c., 81 Ky., 15; Sherley, &c., v. Sherley, &c., 81 Ky., 240, and in Bush v. Lisle, 89 Ky., 401.

3. There is abundant evidence to sustain the finding of the jury. The verdict is not palpably or flagrantly against the weight of the testimony, though there is a conflict between that offered by the one side and that offered by the other. (See Broaddus v. Broaddus, 10 Bush, 300; Fuller v. Fuller, supra.)

4. The alleged newly discovered evidence is not of a decisive or controlling character. It is doubtful whether it would have had any preponderating influence upon another trial. (See Mercer v. Mercer, 87 Ky., 21.) Nor is it at all certain that by the exercise of reasonable diligence, the contestants could not have learned of the existence of the alleged new testimony before the trial. However, without regard to the errors alleged, the judgment must be affirmed.

The motion for a new trial was overruled on June 24, 1889. By appropriate orders time was given the contestants until September 30th to prepare and tender a bill of exceptions. On that day no bill was tendered, but over the objection of the propounders (appellees) the time was extended to October 14th. Then, on the contestants' motion, time was given them until October 28th, then it was extended to November 11th and finally to November 18th, on which day the contestants for the first time tendered a bill of exceptions. Time was then given them until November 25th to "complete" the bill, and on their motion this was extended until December 4th, when they "tendered to the court a bill of exceptions which, being signed and sealed, was filed and made part of the record."

We think a brief examination of the law controlling the practice in this court will show that this bill can not be regarded as part of the record. The Jefferson Court of Common Pleas has no appearance terms, but it is provided that it "shall be always open." It is further provided that "it shall have the same power, and for the same length of time, over its judgments as the chancellor of the Louisville Chancery Court has over its judgments;" and the latter court has "such control over its judgments, for sixty days, as circuit courts have over their judgments during the term in which they are rendered." (Civil Code, sec 772.)

As to any given order or decree, therefore, the period of sixty days from its entry or rendition is to be regarded as a "term" in these courts. At the expiration of sixty days from the entry of the order or decree the term of court, so to speak, as applicable to this order or decree ceases, because the court loses control over it, just as the judge of a court having stated terms loses control over his orders after the term ceases. The beginning of the second sixty days, therefore, after the entry of a given order is the beginning of the succeeding term or the next term with reference to that order.

Now, the law governing the subject of exceptions, and applicable to all the courts, is found in the Civil Code, section 334. It provides that "the party objecting must except when the decision is made; and time may be given to prepare a bill of exceptions, but not beyond a day in the succeeding term, to be fixed by the court." An amendment to this section provides that, if the judge of said court, for any cause, does...