Butman v. Christy
| Decision Date | 01 April 1924 |
| Docket Number | 35896 |
| Citation | 198 N.W. 314,197 Iowa 661 |
| Parties | MARGARET BUTTMAN et al., Appellees, v. MARIA CHRISTY et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Mills District Court.--TOM E. WHITMORE, Judge.
PROCEEDING for the probate of the purported will of Retta C. Angell. There was a verdict for the contestants. From an order denying probate, the proponents appeal.--Reversed.
Reversed and remanded.
W. S Lewis and D. E. Whitfield, for appellants.
Genung & Genung and Cook, Cook & Cook, for appellees.
VERMILION J. EVANS, STEVENS, and DE GRAFF, JJ., concur.
This is the second appeal in this case. Upon the first, it was held that there was no evidence to support a verdict that the will in question was procured by undue influence. 194 Iowa 262. Among other objections originally made to the probate of the will was the following:
"Said purported last will and testament is not the last will and testament of the said Retta C. Angell, deceased."
Upon the first trial, the court instructed the jury that it was admitted by the contestants that the proposed will was executed by Retta C. Angell in manner and form required by law. After the reversal on the former appeal, the contestants filed an amendment to their objections, and objected to the probate of the will "for the reason that the said Retta C. Angell, deceased, never signed said last will and testament, and that the signature attached thereto, purporting to be that of Retta C. Angell, was not attached to said instrument by the said Retta C. Angell, and that the same is not her signature."
Proponents filed a motion to strike this amendment, (1) because filed without leave of court, (2) because filed too late, and after the cause had been tried and decided by the Supreme Court upon the issues made, and (3) because it was not an amendment, but set up a new cause of action or new ground of objection. This motion was overruled. Complaint of this ruling was made in a motion for a new trial, and is assigned as error in this court.
Two propositions are urged. It is said that, after a trial and reversal, the issues may not be changed on a retrial. In this proposition is involved the further question whether the amendment was a mere amplification of a ground of objection already made, or the presenting of an entirely new issue or ground of objection. It is further urged that the objections originally made raised the question of the execution of the will, and that there was an adjudication of it upon the first trial, by virtue of the court's instructions.
The two contentions are obviously more or less inconsistent. If the question was raised by the original objections, the amendment did not present a new ground of objection. On the other hand, if it did present an entirely new ground of objection, it was because the question was not presented by the original objections, in which case there was no adjudication. However, both propositions will be considered.
This proceeding is triable as an action at law, and is heard here only upon error assigned, and not de novo. Ross v. McQuiston, 45 Iowa 145; Sisters of Visitation v. Glass, 45 Iowa 154; In re Will of Norman, 72 Iowa 84, 33 N.W. 374; In re Will of Bever, 93 Iowa 576, 61 N.W. 1072. An examination of the cases reveals the fact that the practice of amending the petition or answer in a law action after a reversal, has been one commonly followed and accepted without question, frequently expressly approved, and in only two instances, so far as we have been able to discover, disapproved.
The effect of the reversal of a law action for errors of the trial court is a very different thing from the reversal of an action in equity that is triable de novo in this court, and where a final judgment is rendered here or in the lower court under direction. It has been often held that, speaking generally, the reversal of a law action sends it back to the court below for a retrial, and does not authorize a judgment for the successful appellant. Owens v. Norwood-White Coal Co., 181 Iowa 948, 165 N.W. 177; Landis v. Interurban R. Company, 173 Iowa 466, 154 N.W. 607; Bruce v. Galvin, 183 Iowa 145, 166 N.W. 787; Sanders v. Sutlive Bros., 175 Iowa 582, 154 N.W. 610.
In numerous cases, after reversal, an amendment to the petition has been filed after the expiration of the statutory period within which an action must have been brought. In this class of cases, the question was whether the amendment presented a new cause of action, and was, therefore, barred. They are illustrative, however, of what we believe to be a common and generally accepted practice. Among the cases of this character the following are cited: Kuhns v. Wisconsin, I. & N. R. Co., 76 Iowa 67, 40 N.W. 92; Thayer v. Smoky Hollow Coal Co., 129 Iowa 550, 105 N.W. 1024; Plantz v. Kreutzer & Wasem, 192 Iowa 333, 183 N.W. 341. See, also, Williamson v. Chicago, R. I. & P. R. Co., 84 Iowa 583, 51 N.W. 60, Zimmerman v. Robinson & Co., 128 Iowa 72, 102 N.W. 814.
In Bebb v. Preston, 3 Iowa 325, which was a garnishment proceeding, an amended reply to the answer of the garnishee, filed after a reversal, was stricken. It was said:
In the case of Gray v. Regan, 37 Iowa 688, an action at law, judgment had been rendered on the report of a referee. This judgment was reversed on appeal. Upon remand, an amended answer was filed, denying, for the first time, certain allegations of the petition. This court said that the defendant's right to file an amended answer could not be doubted, under the circumstances of the case, after the redocketing in the district court.
Scott v. County of Chickasaw, 53 Iowa 47, 3 N.W. 820, was an action to recover taxes. Upon the first trial, it was held that the land was subject to taxation, and a recovery was denied. On appeal, the judgment was reversed and the cause remanded for a new trial. Thereafter, by an amendment, the defendant pleaded defenses existing but not set up on the first trial. It was urged, on the second appeal, in attack on the ruling of the lower court refusing to strike the amendment, that the case was tried de novo in this court. It was held that this was not the case, and that, after the cause was again in the district court, amendments to the pleadings were allowable, in the furtherance of justice.
The statutes at the time these cases were decided were not; as respects the question under consideration, materially different from Section 3600 of the Code. Section 1759, Code of 1851; Section 2977, Revision of 1860.
In the case of Hanson v. Cline, 142 Iowa 187, 118 N.W. 754, an action for damages, the plaintiff, after the reversal of a judgment in his favor, amended his petition. A motion to strike the amendment on the ground that it changed the issues was sustained. On a second appeal, this was held to be error.
The case of In re Estate of Oldfield, 175 Iowa 118, 156 N.W. 977, was a claim against an estate for damages. After the reversal of a judgment in plaintiff's favor, the defendant amended the answer, setting up a new defense. On the second appeal, the plaintiff, cross-appellant, urged that:
"After a case has been tried to a jury upon certain issues and appealed, after reversal neither party has, as a matter of right, to so amend the pleadings as to raise new issues."
This contention the court met by saying:
In re Estate of Cook, 143 Iowa 733, 122 N.W. 578, arose on objections to an executor's report, and involved the distribution of the estate, consisting wholly of damages received for the death of the deceased. On the first trial, the question presented was as to the distribution of the estate so derived, under the laws of this state. After a reversal, by amendment it was alleged that the death of decedent occurred in Nebraska, and distribution of the damages received therefor was asked in accordance with the laws of that state. It was held, Justice Evans dissenting, that a motion to strike the amendment should have been sustained. This case is, perhaps, distinguishable from those cited above, but, if not, it is not in accord with the doctrine they announce.
In Wapello St. Sav. Bank v. Colton, 143 Iowa 359, 122 N.W. 149, the plaintiff appealed from an order striking part of the petition, and procured an order staying proceedings in the district court, pending the appeal on an application representing that, if the ruling was affirmed, no trial would be necessary. After an affirmance, plaintiff was not permitted to amend, asking reformation of certain of its records upon which the former ruling and affirmance had been based. It was held that plaintiff had waived the right to amend, and that there was no abuse of discretion in striking the amendment; but it was said that, had the motion to strike been overruled and that order reversed, the situation would have been entirely different, and plaintiff, on remand, might very properly have elected to amend.
Upon the reversal of a law action, save in cases where, being of the opinion that...
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