Geils v. Fluegel (In re Fluegel's Estate)

• Decision Date: 02 May 1901
• Citation: 10 N.D. 211,86 N.W. 712
• Parties: In re FLUEGEL'S ESTATE. GEILS et al. v. FLUEGEL et al. (WIER, Intervener).
• Court: North Dakota Supreme Court

10 N.D. 211

86 N.W. 712

In re FLUEGEL'S ESTATE.GEILS et al.

v.FLUEGEL et al. (WIER, Intervener).¹

Supreme Court of North Dakota.

May 2, 1901.

Syllabus by the Court.

This action was tried in the district court without a jury, and judgment was entered in favor of the intervener and the respondents. Contestants have appealed to this court from such judgment, and in their notice of appeal state that the appeal is taken from the judgment, and from the whole thereof. In the statement of the case appellants have demanded a trial anew in this court of the entire case. A motion was made in this court in behalf of the respondents to strike out the statement of the case and to affirm the judgment upon the ground that a mass of evidence, consisting of numerous papers numbered as exhibits, were offered and received in evidence in the court below, and that such evidence was not incorporated in the statement of the case, but was, on the contrary, wholly omitted from the statement. It appears upon the hearing of the motion, and the fact was conceded, that said evidence was offered and received below, and was not embodied in the statement. Motion to affirm the judgment is granted.

Appeal from district court, Cass county; O. E. Sauter, Special Judge.

Action by Amelia Geils and others against William Fluegel, Sr., and other. Hugh Wier intervened. From a judgment for defendants and intervener, plaintiffs appeal. Affirmed.Taylor Crum and Ida M. Crum, for appellants. Benton, Lovell & Holt, for respondents.

WALLIN, C. J.

This cause originated in the county court for the county of Cass, and the principal question upon the merits has reference to the probate of a certain document filed in the county court, which purported to be the last will and testament of one Justina Fluegel, deceased. This record shows that on the 24th day of July, 1899, a decree was entered herein in said county court adjudging, in effect, that said document purporting to be a will should be admitted to probate as such will. By the same order Julius W. Fluegel and William Fluegel (sons of the deceased) were appointed executors, and letters testamentary were awarded to them as such. From this decree plaintiffs appealed to the district court for Cass county, and demanded a trial anew in said court. After the case had reached the district court, said intervener, Hugh Wier, applied for and obtained leave to intervene as a party to the action, and thereupon filed his complaint in intervention, and in his said complaint prayed for certain equitable relief in the matter of certain mortgages held by the intervener upon the real estate described in and devised by the terms of said will. No answer or demurrer was ever filed or served to the said complaint in intervention, but during the progress of the trial of the action which was had in the district court the intervener offered testimony in support of his complaint, and said testimony consisted in part of certain documents or exhibits, which were offered and received in evidence, and which were numbered from 5 to 14, inclusive. It is conceded that none of these exhibits were ever incorporated in the statement of the case, and that the same are not in the record transmitted to this court. The litigation in the district court resulted in the entry of a judgment in that court, which, among things determined, affirmed the decree of the county court, from which an appeal was taken to the district court as above stated. Said judgment also directed, in substance, that a satisfaction of a certain mortgage, covering the real estate described in said will, which had previously been executed by the intervener, should be vacated and set aside; and said judgment of the district court further directed that certain promissory notes executed by the legatees named in the will should be canceled and surrendered, and that two certain mortgages upon said real estate, given to secure said notes, should also be surrendered and canceled of record. The action was tried in the district court without a jury, and the appellants, in their statement of the case herein, demand a trial de novo in this court of the entire case. When the case was called in this court a motion was interposed in behalf of the respondents to affirm the...