Bradley v. Onstott
| Decision Date | 06 January 1914 |
| Docket Number | 22,138 |
| Citation | 103 N.E. 798,180 Ind. 687 |
| Parties | Bradley et al. v. Onstott et al |
| Court | Indiana Supreme Court |
From Shelby Circuit Court; Alonzo Blair, Judge.
Action by Elihu Onstott and others against Samuel S. Bradley and others. From a judgment for plaintiffs, the defendants appeal.
Affirmed.
David L. Wilson, Elmer J. Binford, Thomas E. Glasscock and Jesse Sanford, for appellants.
Cook & Cook and Hord & Adams, for appellees.
This was a proceeding brought by appellees to contest the last will of William Bradley, deceased, and to set aside the probate of it, on the grounds of his mental unsoundness and undue execution. A trial resulted in a verdict and judgment favorable to the contestors. In this court the only error assigned and relied on for reversal is the action of the trial court in overruling appellants' motion for a new trial.
Among the causes for a new trial which were stated in the motion and are now relied on for reversal is the insufficiency of the evidence in fact and law to sustain the verdict. Counsel for appellees claim, and the claim must be sustained, that the brief for appellants does not comply with clause 5, Rule 22 of this court which provides that, if the insufficiency of the evidence to sustain the verdict or finding, in fact or law, is assigned, the brief of appellant shall contain a condensed recital of the evidence in narrative form so as to present the substance clearly and concisely. Ireland v. Huffman (1909), 172 Ind. 278, 88 N.E. 508; Cleveland, etc., R. Co. v. Bowen (1913) 179 Ind. 142; 100 N.E. 465; Conner v. Andrews Land, etc., Co. (1904), 162 Ind. 338, 70 N.E. 376; Welch v. State, ex rel. (1905) 164 Ind. 4, 72 N.E. 1043.
The verdict of the jury was based on the alleged unsoundness of mind of the decedent; and while appellants' brief does not present a full compliance with the rule in presenting a condensed recital of the evidence, it does, when supplemented in this respect by the brief of appellees show that the evidence was conflicting on this question and, therefore, this court has no authority to disturb it.
The action was instituted in the Hancock Circuit Court and there, as shown by the record, an answer of general denial was filed by appellant, Ginley, through her attorneys; and in that court, also, an answer signed in person by all the appellants and other defendants, other than appellant, Ginley, was filed, which answer admitted the facts averred in the complaint and asked that the parties signing it be relieved from costs. Subsequently the venue was changed to the Shelby Circuit Court where, without other pleadings on the part of appellants, the cause came on for trial and a jury was empaneled and sworn to try the same, whereupon, appellants other than appellant, Ginley, asked leave, by motion in writing, to withdraw the answer which admitted the truth of the facts averred in the complaint and to file a general denial instead. This motion was supported by affidavits and appellees filed a verified showing in opposition to it. The issue thus raised was not the genuineness of the answer and the signatures to it, but whether the filing of it was authorized by the signers. The court overruled the motion, refused to permit the withdrawal of the answer or permit the filing of general denials by these parties, and this action is made cause for a new trial and is earnestly urged at great length as reversible error. Counsel for appellees, while insisting that under the facts presented and upon which the trial court acted in the matter, the action taken was in no sense erroneous, claim that the question is not one which can be presented as cause for a new trial and so reviewed by this court, but must be presented by an independent assignment of error in this court. In this counsel are right and, appellants not having made such an assignment, the question cannot be considered. In Elliott, App. Proc. § 348, it is said: See, also, Ewbank's Manual §§ 39, 133; Fireman's Fund Ins. Co. v. Finkelstein (1905), 164 Ind. 376, 73 N.E. 814; Reed v. Light (1908), 170 Ind. 550, 85 N.E. 9; Standard Oil Co. v. Bowker (1895), 141 Ind. 12, 40 N.E. 128; Lupton v. Coffel (1911), 47 Ind.App. 446, 94 N.E. 799. In Standard Oil Co. v. Bowker, supra, it was said: "Rulings upon demurrers and motions addressed to the pleadings in the making up of the issues can not be regarded as proper parts of the trial and have no place properly in a motion for a new trial." We are not impressed by the argument of counsel that as this motion was not made until after the jury had been sworn, the action of the court was, "error of law occurring at the trial," to be cause for a new trial, and that it is to be distinguished from a like ruling made before the submission of the cause to the jury. It could none the less be a motion addressed to the pleadings in the making up of the issues because postponed until the jury was sworn. The contention of counsel, if granted, would present the anomaly of a party to a cause securing a double review of a ruling denying such a motion by a short delay in making it, when, if timely made, he would have but one.
On the trial the court sustained objection by appellees to fifty-one questions propounded to various witnesses, the purpose of which was to elicit testimony in support of the claim of appellants who had asked leave to withdraw the answer admitting the facts averred in the complaint that such answer had been filed without their consent. Exception was taken to these rulings of the court and they were made the bases of as many causes for a new trial. Much of appellants' long brief is devoted to earnest insistence that this was error which should compel a reversal and a new trial of the cause. The contention of counsel cannot be sustained. The sole issue presented to the jury for trial and determination was whether the will had...
To continue reading
Request your trial