Danville Trust Co. v. Barnett

• Citation: 111 N.E. 429,184 Ind. 696
• Decision Date: 17 February 1916
• Docket Number: No. 22707.,22707.
• Parties: DANVILLE TRUST CO. et al. v. BARNETT.
• Court: Indiana Supreme Court

184 Ind. 696

111 N.E. 429

DANVILLE TRUST CO. et al.

v.BARNETT.

No. 22707.

Supreme Court of Indiana.

Feb. 17, 1916.

Appeal from Circuit Court, Morgan County; Nathan A. Whitaker, Judge.

Action by Chester P. Barnett against the Danville Trust Company and others. From a judgment for plaintiff, defendants appeal. Affirmed.Otis E. Gulley, of Danville, Bain & Branch, of Martinsville, and Henry N. Spaan and B. F. Watson, both of Indianapolis, for appellants. James M. Ogden, of Indianapolis, Silas C. Kivett, of Martinsville, and Edgar M. Blessing, of Danville, for appellee.

ERWIN, J.

This was an action to contest a will on the grounds: (1) Undue execution; (2) unsoundness of mind of testator; and (3) undue influence. Issues were formed by all appellants filing an answer in general denial. The issue of undue influence was taken from the jury upon motion. The other issues were submitted to a jury, which found for appellee.

Appellants predicate error here on the action of the court in overruling the motion for a new trial, and in overruling the motion in arrest of judgment. Appellants have also assigned error on matters of fact, which they claim they have authority to do under section 3163 Burns' 1914. Appellants also insist that the complaint is insufficient for lack of proper parties, a matter which they presented for the first time in their motion in arrest of judgment.

[1] The misjoinder of parties must, if it appear in the complaint, be taken advantage of by demurrer, but, if not so appearing in the complaint, must be taken advantage of by plea in abatement. Moore v. Harmon, 142 Ind. 555-557, 41 N. E. 599;White v. Wood, 183 Ind. -, 109 N. E. 761.

Since the act of 1911, page 415, went into effect, all questions as to defects of parties not presented by demurrer or answer shall be deemed to have been waived. The fact that appellants have not presented the question of defect of parties, either by demurrer or answer precludes their so doing by a motion in arrest of judgment, or by assignment in this court. It must follow that the court did not err in overruling the motion in arrest of judgment.

[2] It is insisted by appellants that they have a right to assign questions of fact in this court in this class of cases, and that the decisions of this court on that subject should be overruled.

In Wait v. Westfall (1903) 161 Ind. 648, 68 N. E. 271, this court held by Hadley, J., that only questions of law could be assigned in this court. That was also a case to contest a will, and the court there said:

“The question has long since been decided against the position here assumed, and we have not been persuaded that the previous ruling is incorrect, or should be modified” (citing Coffman v. Reeves, 62 Ind. 334;Eckert v. Binkley, 134 Ind. 614, 620, 33 N. E. 619, 34 N. E. 441).

Saying further:

“It may be considered as thoroughly settled, under the existing Code of Practice, that in all cases triable by jury this court will not undertake to determine questions of fact from the weight of the evidence.”

The questions presented by the motion for a new trial arise upon the giving of certain instructions; the refusal to give certain instructions tendered by appellants; the admission of certain testimony over appellants' objections; the rejection of certain testimony offered by appellants; the modification of certain instructions tendered by appellants and, as modified, given to the jury; and the alleged misconduct of counsel for appellee.

[3] To properly determine whether reversible error has been committed in giving instructions, the instructions should be taken as a whole. Reddick v. Young, 177 Ind. 632-640, 98 N. E. 813;In re Darrow, 175 Ind. 44-58, 92 N. E. 369;Sterling v. Frick, 171 Ind. 710-715, 86 N. E. 65, 87 N. E. 237.

[4][5] Appellants insist that the court erred in refusing to give instruction 4, tendered by them. Appellants have not set out in their brief all the instructions given, but an examination of the record discloses that this instruction was fully covered by other instructions given by the court. Instruction 5, tendered by appellants, was modified and given. The modification consisted in striking out the word “important” in calling the jury's attention to certain facts that might be taken into consideration in determining the soundness of mind of the testator, and in striking out the words “as tending to support and uphold the will.” It was proper to refuse this instruction as tendered, for the reason that it is not proper for the court to emphasize any one fact shown by the evidence more than another, but all facts should be considered by the jury as a...