Gandy v. Bissell's Estate
| Decision Date | 05 March 1908 |
| Docket Number | No. 15,331.,15,331. |
| Citation | 115 N.W. 571,81 Neb. 102 |
| Parties | GANDY v. BISSELL'S ESTATE. |
| Court | Nebraska Supreme Court |
Where the judge of a district court, who has had the advantage of seeing the witnesses and observing their demeanor while testifying, overrules a motion for a directed verdict, and there is sufficient competent evidence in the record, standing alone, to sustain the verdict returned by the jury, this court will not disturb such a verdict and reverse a judgment rendered thereon, even though the evidence in opposition to the verdict is such, as shown by the record, that a peremptory instruction might have been sustained.
Where a person, by deed, shortly before his death conveys all of his lands to a third party for a nominal consideration, which deed is withheld from record until after the death of such person, and, after his death, an unsecured claim for a large amount is filed against his estate, and it appears from the testimony of the surviving wife of such deceased person that she, at least, joined in said deed on account of rumors which she and her deceased husband had heard in relation to said claim, such deed is proper evidence, and it is error to exclude it.
Counsel should not be permitted, in the face of proper objections, to get before a jury improper evidence, and then escape the consequences of their action by consenting that it be stricken from the record.
In such case, if the evidence is of such a character, under the particular circumstances of the case, that it may have affected the verdict the error cannot be disregarded. M. P. R. Co. v. Fox, 60 Neb. 555, 83 N. W. 744, and cases there cited, distinguished.
While, under particular circumstances which may arise on the trial in the district court of a claim against a decedent's estate which has been appealed to said court, it may be proper to permit evidence of the date when such claim was filed in the probate court and the last date for filing claims, it is not proper to submit to the jury copies of the proceedings in said court.
It is not reversible error for the district court to refuse to permit counsel, when addressing the jury, to discuss immaterial evidence.
In a suit upon a promissory note, where the plaintiff has possession of the note, produces it upon the trial, and it is received in evidence, such facts make a prima facie case of due delivery of the note.
“When it shall be made to appear to a district court that a fair and impartial trial of a cause cannot be had in the county where brought, then such court has not only the discretion, but it is its duty, to send the cause to some adjoining county for trial.” O. S. Ry. Co. v. Todd, 39 Neb. 818, 57 N. W. 289, followed.
And in such case the court is not limited to the adjoining county, but where the showing is equally or sufficiently strong as to an adjoining county the case should be sent to some county where the alleged prejudice does not exist.
Commissioners' Opinion. Department No. 2. Appeal from District Court, Pawnee County; Jessen, Judge.
Mary E. Gandy presented a claim against the estate of William G. Bissell, deceased. Judgment in the district court for the estate, on appeal from the county court, and claimant appeals. Reversed and remanded, with instructions.S. P. Davidson, E. Falloon, and S. Rinaker, for appellant.
C. Gillespie and F. Martin, for appellee.
The nature of this case is sufficiently stated in the former opinions of this court, as reported in 90 N. W. 883, 97 N. W. 632, and 72 Neb. 356, 100 N. W. 803. Following the reversal in 72 Neb. 356, 100 N. W. 803, the case was remanded to the district court, and was again tried to a jury, resulting in a verdict and judgment for the defendant. From that judgment, plaintiff prosecutes her third appeal to this court. We do not deem it necessary to consider the evidence or questions of law considered and discussed in the former opinion, and will therefore confine this opinion to the new questions raised on the present appeal. A large number of errors are assigned by plaintiff in her assignment of errors, but, under the well-established rule in this court, we shall consider only those which are pointed out and discussed in appellant's brief.
Plaintiff's first complaint, and the one argued at greatest length, is that the verdict is not sustained by the evidence; that the evidence so strongly preponderates in favor of plaintiff that the verdict must have been given under the influence of passion or prejudice, in utter disregard of the evidence produced by plaintiff; and that the evidence is so overwhelmingly in favor of plaintiff that the district court should have directed a verdict in her favor. This contention was made on both of the former appeals, but in each instance this court held that the evidence offered in behalf of defendant was sufficient to require the submission of the case to the jury. On this branch of the case, counsel for defendant urge that there is no merit in plaintiff's contention that the court should have directed a verdict in her favor, but that three successive juries having passed upon the case, and returned their verdicts in favor of defendant, the present judgment should be affirmed, and this protracted litigation ended. If defendant's statement of this point were accurate it would be entitled to great weight, but we do not think the record will bear out the statement that three successive juries have passed upon the case, as presented by the present record, adversely to plaintiff. The record presented to this court was substantially the same on both of the former appeals, but upon the last trial of the case plaintiff introduced considerable new testimony by some six different witnesses. This testimony is now in the record for the first time; hence, but one jury has yet passed upon the testimony now before us. There is no claim that the defense was in any manner strengthened on the last trial of the case by the introduction of any new evidence. The case for the defendant, therefore, is substantially the same as on the former appeals. Plaintiff, however, on the last trial introduced all of the evidence which appeared in the records on the former appeals, and in addition thereto the following new testimony:
George Turner testifies that he had lived at Humboldt (the home of the Gandys and Mr. Bissell) for 19 years; that he is now filling his second term as councilman of the city of Humboldt; that he lived neighbor to Mr. Bissell (the deceased) in the years 1892-3-4; that in October or November of 1894 Mr. Bissell talked with him about securing a loan. The witness says: J. C. Worral testified that he at one time lived on the Bissell farm; that in the year 1892 he had a talk with Mr. Bissell about the purchase of one of his (Bissell's) quarter sections of land. He says: “I asked what it would take to buy it, and he said he would sell that quarter of land for sixty-five hundred dollars, we talked about selling it, and finally he said, ‘I will throw off fifty dollars for commission and make it sixty-four hundred and fifty,’ and he says, ‘I owe M. E. Gandy a note of fifty-six hundred dollars that you will have to pay if you buy the land.’ ” J. H. Shook, who has been road supervisor, postmaster, county commissioner, and member of the Legislature, testifies that in 1893 F. W. Samuelson, the banker with whom it appears both Mr. Bissell and the Gandys did business, says that in 1895 Mr. Bissell came to him and wanted to know how he “would lend money on land--just making a farm loan,” and in answer to a question as to what Mr. Bissell said about the purpose for which he wanted the loan, testified: “Well, at that time I believe it was that I asked him what he wanted with such a large amount of money--such a large loan--and he said that he was owing Mrs. Gandy quite an amount of money.” M. R. Wilson, ex-sheriff of Richardson county, testifies that in July, 1892, Mr. Bissell told him that he was owing the Gandys; that he (the witness) asked Mr. Bissell He further testifies that in that conversation Mr. Bissell stated that he owed the Gandys fifty-five or six hundred dollars or between five and six thousand dollars. Edward Moyer, who now lives in Kansas, testified that he lived in Humboldt from 1878 to 1888; that he and Mr. Bissell were both members of the same church, and took quite an interest in each other; that he and his wife would often go down and stay with the Bissells; that, during his conversations with Mr. Bissell, “he told me a good deal about his business and about his troubles,” that in 1892, while on a visit to Humboldt, he had a conversation with Mr. Bissell with reference to the latter's financial circumstances, and testifies that Mr. Bissell said to him: ...
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