Bem v. Bem
| Decision Date | 29 July 1893 |
| Citation | 4 S.D. 138,55 N.W. 1102 |
| Parties | LOTTIE BEM, Frank J. Bem, and Arthur A. Bem, Plaintiff and respondent, v. EMILIE BEM, and Fred Heiser, Administrator of the Estate of Frank Bem, Deceased. |
| Court | South Dakota Supreme Court |
EMILIE BEM, and Fred Heiser, Administrator of the Estate of Frank Bem, Deceased. South Dakota Supreme Court Appeal from Circuit Court, Hutchinson County, SD Hon. E. G. Smith, Judge Reversed G. P. Harben, N. J. Cramer Attorneys for appellant. R. B. Tripp, Yankton, SD Attorney for respondent. Opinion filed July 29, 1893
Respondents, who were plaintiffs below, are the children of Frank Bem, deceased, by a first wife. Appellant Emilie Bem is the second wife and is the widow of said Frank Bem, deceased. -- Bem is their infant child. The general purpose of the action was to have certain property, real and personal, standing in the name of and claimed by appellant as her own, adjudged and declared to be of the estate of said Bem, deceased, and subject to be distributed as such. Fred Heiser, as administrator, refusing to bring the action, it was brought by respondents, as already stated, and the administrator was made a defendant. Upon the issues made by defendant’s answer the case was referred to a referee to try all the issues therein, and report findings of fact and conclusions of law. Upon the report of the referee, which was favorable plaintiffs, judgment was rendered by the court in accordance with the prayer of the complaint. Motion for new trial having been overruled, the defendants appeal.
The theory of the plaintiffs was that the deceased, Frank Bem, at the time of his marriage with the defendant Emilie was possessed of some means; that Emilie had nothing, and that all the property in question was the product and growth of his judicious management of the said means of the deceased; that in the transaction of his business, which was largely that of loaning money, he had, for purposes hereafter referred to, taken notes and securities in his wife’s name, and had for similar reasons taken deeds of real estate, which he bought and paid for with his own money, in the name of his wife, without any intention in fact of making her the real owner of either the real or personal property, and without that effect in law. The theory of defendant was that by and in pursuance of an antenuptial agreement Frank Bem, in consideration of her marriage to him, gave to defendant the bulk of the property then owned by him, and afterwards acted as her agent in its management, and that the property referred to in plaintiffs’ complaint was her own separate property, so made over to her in consideration of the marriage. During the progress of the trial before the referee, which the abstract shows was commenced June 30, 1891, upon motion of plaintiffs and upon affidavits, the referee granted a continuance for several days. This is assigned and claimed as error, though not argued. The statute expressly gives the referee the same power as to adjournments as a trial court has. Sec. 5, Chap. 100, Laws 1891. The affidavit upon which the adjournment was allowed is not presented to us, and we cannot assume that the referee’s discretion was improperly exercised.
As the chief question in the case is the sufficiency of the evidence to support the findings of the referee, or any findings which would justify the judgment rendered by the court, it is in order first to examine the objections interposed to certain items of evidence, with the view of ascertaining what was properly before the referee, and what ought to be considered by this court in determining the questions presented. Upon the hearing before the referee defendant moved to suppress the deposition of Lottie Sexta, upon the grounds: First, that the name of the officer taking the same was not indorsed upon the envelope in which the same was inclosed; second, because the same was opened by the clerk without order of the court, and without the presence of either of the parties or their attorneys; third, because the notice given was to take the deposition upon the same day and hour at which the taking of another deposition was noticed, at a place many miles distant from the place where the first was to be taken. The motion was overruled, and error is assigned on such ruling. No record is presented upon which we can examine this question. The motion itself is printed in the abstract, but nothing more. What the notices show as to the time and place we have no legitimate means of knowing, nor does the record show how the deposition was returned, or under what circumstances it was opened. We cannot assume that the facts existed as intimated in the motion; but, in the absence of a showing of facts which would prove the ruling of the referee to be wrong, it must be presumed to be correct. Defendant also moved to suppress the deposition of J. N. True for the reason that by the notice under which it was taken sufficient time was not given to get to the place where it was to be taken by the usually traveled route, with one day for preparation, as provided by Section 5280, Comp. Laws. The section referred to says in respect to the notice: “The notice shall be served so as to allow the adverse party sufficient time by the usual route of travel to attend, and one day for preparation, exclusive of Sundays and the day of service,” etc. We think the record shows sufficient facts as to the time required to get to the place where the deposition was to be taken, with another day for preparation, to entitle the defendant to more time than the notice allowed; and, if the record showed no more than that the defendant appeared and objected to the taking of the deposition because the day for preparation was thus denied him, we should find difficulty in avoiding appellant’s objection. Our statute, above quoted, is different from that of Wisconsin, Illinois, and Indiana, where it has been held that, although the notice allows less time than the law contemplates, still, if the noticed party is actually present, and participates in the examination, the error is not prejudicial. This is so held on the ground that under the statutes of those states the only object of the notice was to give the adverse party time and opportunity to be present, and the fact that he is present and cross-examines the witness proves that the object of the statute has been accomplished. But our statute contemplates a further purpose and effect of the notice. It not only designs to give the adverse party time to reach the place of examination, but to give him an extra day for preparation. In this case the abstract shows that when defendant objected on account of the shortness of the time given by the notice, the plaintiffs offered to postpone the examination so as to give defendant the time claimed. Failure to avail himself of this offer, without explanation, we think answers any presumption of prejudice to defendant, and error without prejudice is no ground for reversal.
The deposition of Frank Bem on the part of plaintiffs was objected to by defendants on the ground that he “was an heir of deceased, Frank Bem, and not competent to testify under the statutes.” This objection was overruled, and such ruling is assigned as error. The assignment, however, is not considered or referred to in appellant’s argument, and might, therefore, be treated as abandoned. A further reason for passing it without examination is that it nowhere appears that the witness was or is an heir of the deceased, Frank Bem. We cannot assume that Frank Bem whose deposition was taken and so objected to was the same person as Frank J. Bem, one of the plaintiffs. Being differently named,—one as Frank J. Bem and and the other as Frank Bem,—the presumption is a fair one that they are different persons.
Defendants then “objected to question 6, 9, 10,” etc., but appellant does not print the deposition nor any part of it. In respondents’ abstract it is said “Frank J. Bem, a witness on the part of the plaintiffs testified as follows: ‘I am one of the plaintiffs,’” etc. Whether or not this is the testimony covered by the deposition we do not know. We can only say, as we said above in relation to Lottie Sexta’s deposition, we cannot assume the existence of the grounds upon which error is assigned. They must affirmatively appear in the record. The motion to suppress being overruled and the deposition being offered in evidence, the defendants interposed the same objections to the questions and answers of the witness and to said deposition as were interposed by their counsel when the same was taken, and the referee ruled thereon as follows: “The referee overruled the objection to question 3½ of said deposition, to which ruling the defendants excepted.” Then follows the statement in the same form that the referee overruled the objection to questions 4, 7, 11 and 29. It does not appear what were the grounds of the objection as to either question, and the deposition itself, as it appears in the abstract, is in narrative form; no questions or answers are preserved. We can thus neither locate the matter objected to nor know the grounds of objection. Under these circumstances, we are unable to consider or examine the assignment.
The abstract in this case was evidently prepared under the erroneous notion that the court would examine the original papers, and from them supply...
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