Consolazio v. Summerfield

• Citation: 10 P.2d 629,54 Nev. 176
• Decision Date: 25 April 1932
• Docket Number: 2967.
• Parties: CONSOLAZIO v. SUMMERFIELD.
• Court: Supreme Court of Nevada

10 P.2d 629

54 Nev. 176

CONSOLAZIO v. SUMMERFIELD.

No. 2967.

Supreme Court of Nevada

April 25, 1932

Appeal from District Court, Washoe County; B. F. Curler, Judge.

Action by D. Consolazio against Lester D. Summerfield, as executor of the estate of Peter Steffes, deceased. From a judgment for defendant, and an order denying a motion for new trial plaintiff appeals.

Affirmed.

W. M Kearney, of Reno, for appellant.

Lester D. Summerfield, in pro. per., and Brown & Belford, all of Reno, for respondent.

COLEMAN C.J.

This is an action to recover upon a claim rejected by the executor of the estate of Peter Steffes. Judgment was rendered in favor of the executor. Plaintiff has appealed from the judgment and the order denying a motion for a new trial.

In this opinion we will allude to the parties as plaintiff and defendant, and to the deceased as Steffes.

The paper which was the basis for the claim filed with the executor, and which was sued upon and frequently referred to in the trial as a note, reads as follows:

"Reno Nev Dec 27--1929

I owe D. Consolazio the sum of Four Thousand Dollars 4000.00 in American coin any demand maid for said money is to be paid back at once with Interest at 6% six per sent

X Peter Steffes"

The claim filed with the executor demanded accrued interest to the date of payment.

There is no assignment of error in this case as required by law. Shirk v. Palmer, 48 Nev. on page 458, 232 P. 1083 236 P. 678, 239 P. 1000; Smith v. Lucas, 43 Nev 348, 186 P. 674.

Since the assignment of errors is jurisdictional (Coffin v. Coffin, 40 Nev. 345, 163 P. 731), this appeal should be dismissed; however, we will dispose of the matter upon the merits.

The assignment in behalf of the plaintiff is confined to the proposition that the evidence is not sufficient to justify the judgment.

Counsel for the plaintiff cites several authorities to the effect that "It is mockery to talk of evidence if it is discretionary with the tribunal to which it is addressed to disregard it when uncontradicted and unimpeached," citing, among many others, the following authorities: Newton v. Pope, 1 Cow. (N. Y.) 109; Decker v. Braverman, 196 Ill.App. 387; Atlantic Coast Line R. Co. v. Drake, 21 Ga.App. 81, 94 S.E. 65; Baranov v. Scudder, 177 Cal. 458, 170 P. 1122; Chilvers v. Race, 196 Ill. 71, 63 N.E. 701; Louisville & Nashville R. Co. v. Harned (Ky.) 66 S.W. 25; 10 Cal. Jur. 1143.

It is quite probable that the rule invoked is sound, but we do not find that the case falls within the rule, since there is contradictory evidence in the record, and certainly some of the evidence is self-impeached.

The general rule of this court is that when the evidence is conflicting and there is substantial evidence to sustain the judgment it will not be disturbed. But there is an exception to the general rule to the effect that where, upon all the evidence, it is clear that a wrong conclusion has been reached, the judgment will be reversed. Reed v. Reed, 4 Nev. 395; Dalton v. Dalton, 14 Nev. 419; Watt v. Nev. Cent. R. R. Co., 23 Nev. 154, 44 P. 423, 46 P. 52, 726, 62 Am. St. Rep. 772; Burch v. Southern Pac. Co., 32 Nev. 75, 104 P. 225, 239, Ann. Cas. 1912B, 1116; Smith v. Goodin, 46 Nev. 229, 206 P. 1067; Walker Brothers Bankers v. Janney, 52 Nev. 440, 290 P. 413.

Looking at the evidence in cold type, we are frank to say that we think the judgment should be for the plaintiff; but the cold type does not always present the picture as it appears in its making. The demeanor of the witnesses, their manner of testifying, and a variety of things may develop before the trial judge which cannot be presented in the record. For these reasons, the exception to the general rule stated above is rarely found to exist. In a case where one of the parties to the alleged transaction is dead, we should be even more guarded than in the ordinary action in which both parties appear. In fact, it is generally recognized that claims against the estate of a deceased person should be established by very satisfactory evidence, and that such claims and the evidence advanced to support them should be carefully scrutinized so as to prevent, as far as possible, the allowance of unjust or fictitious demands. 24 C.J. 404.

In the light of the observations, let us consider the record. The case was called for trial April 10, 1931. The plaintiff, after giving the usual preliminary testimony, testified that on December 27, 1927, he got from Steffes the note in question, for which he gave Steffes $4,000, and that no part of it had been returned to him. He testified he saw Steffes sign it on the desk in the office in the county jail at Reno. The note was admitted in evidence as Exhibit A. On cross-examination the witness testified that, because of trouble he was having with his wife, he gave the money to Steffes to keep for him, and that he was not entitled to interest. The witness also testified that during the time Steffes was county jailer he served a term of nine months in said jail for violating the prohibition law, during which time he was a trusty.

At the conclusion of this evidence the plaintiff rested his case. Thereupon the defendant made an application for leave to have a handwriting expert examine the note. The court continued the case to April 25, 1931. On that date, a preliminary motion having been disposed of, the plaintiff asked leave to open his case and offer further evidence. The court granted the application, whereupon E. N. Landers and Thos. W. Bath, Jr., were called as witnesses in behalf of the plaintiff. The witness Landers testified that on a Sunday about a month prior to the death of Steffes he had a conversation with Steffes in which he stated to Steffes that he soon would want to borrow some money; that the deceased asked why he did not borrow it from the plaintiff; that he (Steffes) knew that the plaintiff had the money, as he had in his possession $3,500 or more belonging to him. Bath testified that shortly before the death of Steffes in November, 1930, he was in the place of business of the plaintiff, where he saw Steffes and heard him ask the plaintiff when he wanted his money, to which the plaintiff replied, "After the holidays."

Thereupon the plaintiff rested his case.

In opposition to the foregoing testimony the defense called several witnesses. J. D. Hillhouse testified that, at the time of the death of Steffes, the witness was sheriff of Washoe county, Nev., and had been such for some years; that Steffes had been his day jailer for about eight years; that he was on intimate terms with Steffes; that they frequently discussed his affairs; and that at no time did Steffes mention having any money belonging to the plaintiff. He also testified that Steffes, during the time he served as jailer, had access to a safe in the jail office; that the witness frequently checked the cash and property in that safe; and that he never saw any larger sum therein than $700. Thorough search by Hillhouse, the witness Trathen, the executor, and inquiry among the banks and other places, failed to disclose $4,000 or any other sum belonging to Steffes traceable to the money alleged to have been deposited by the plaintiff with him, or at all, except as hereinafter stated. The executor testified that he had known Steffes intimately since 1914, and that during that time Steffes frequently consulted him and talked over his affairs; that he drew the will of Steffes; and at no time did he allude to having received money from the plaintiff.

Witness Harris, assistant cashier of the First National Bank, testified that the deceased had a savings account in his bank at the time of his death; that on July 1, 1929, the deceased had a balance of $15,619.99; on January 7, 1930, he had a balance of $16,029.36; and that on July 1, 1930, interest in the sum of $319.36 was added; that on July 7, 1930, a deposit of $300 was made; that on January 1, 1931, interest was added, making a total of $16,880.23. The witness testified that Steffes did not have a checking account with his bank, and though he had a safe deposit box, examination thereof disclosed no money or thing of value.

Steffes died suddenly, and $200 in cash was found on his person. This is the entire pertinent testimony in behalf of defendant, except that of the experts.

The defendant conceded at the trial that the signature on the paper in question was that of Steffes, and urges the theory that the plaintiff, while serving a term in jail in 1921-22, got possession of the paper with the signature of Steffes thereon and erased therefrom writing, and had the matter filled in which is now relied upon.

In support of this theory, E. O. Heinrich was called and qualified as a consulting criminologist practicing in the field of chemistry as a part of his business, as well as in the examination of disputed handwritings.

This witness testified that he had examined Plaintiff's Exhibit A, the document sued upon; that he examined it "with a suitable magnification...