Gwinn v. Hobbs
Decision Date | 14 December 1923 |
Docket Number | 11,613 |
Citation | 141 N.E. 812,83 Ind.App. 263 |
Parties | GWINN ET UX. v. HOBBS ET AL |
Court | Indiana Appellate Court |
Rehearing denied April 14, 1924. Transfer denied June 10 1925.
From Clinton Circuit Court; Earl B. Stroup, Judge.
Action by Anna Hobbs and others against James M. Gwinn and another. From a judgment for plaintiffs, the defendants appeal.
Reversed.
Joseph Roberts, Floyd Christian, Harry C. Sheridan and Earl F. Gruber, for appellants.
Thomas M. Ryan, Gentry, Cloe & Campbell and Shirts & Fertig, for appellees.
OPINION
This is the second appeal of this case, which is an action to quiet title, and involves questions of undue influence and of the soundness of mind of Sarah Kauffman, the grantor in the deed challenged. The opinion in the first appeal is reported in 72 Ind.App. 439, 118 N.E. 155. The error assigned is the action of the court in overruling appellants' motion for a new trial, which presents the questions hereinafter considered. By the deed involved, Sarah Kauffman, on August 13, 1901, conveyed to appellant James M. Gwinn a certain farm containing 130 acres of improved land, for an expressed consideration of "one dollar, love and affection and conditions stated herein," reserving to herself the rents and profits, and possession of said real estate for and during her natural life. Contemporaneous with the execution of said deed, the grantor and the grantee, appellant James M. Gwinn, entered into the following agreement concerning said real estate:
Appellant Stella is the wife of appellant James M. Gwinn, and he and appellees are the grandchildren of Mrs. Kauffman. The only evidence as to the value of the estate was offered by appellees, by which it appears that the land here involved was worth $ 100 an acre at the time of the execution of the deed and from $ 225 to $ 250 an acre in 1912. The value of Mrs. Kauffman's estate, other than the land involved at the time of the execution of the deed does not appear, but, at the time of her death, her personal estate, aside from her household goods, was worth $ 15,676.38, and forty acres of land which she owned not here involved was worth $ 50 an acre at the time of the execution of the deed and $ 75 to $ 80 an acre in 1912.
Appellees call attention to the fact that this case has been pending for ten years, and that there have been three trials with a verdict at each trial in favor of appellees, and argue that, therefore, a new trial should not be granted. While appellees do not charge the delay to the fault of any one, and we do not undertake to fix the responsibility therefor, we have no hesitation in saying that it is much to be regretted that there should be such delay in the final determination of the action. This, within itself, however, is not a sufficient reason for refusing to grant a new trial if substantial error is presented. Nor is the fact that there have been three verdicts in favor of appellees a sufficient reason for refusing to grant appellants relief unless the controversy presents only questions of fact for consideration. So long as substantial errors of law occurring at the trial are presented, it is our duty to consider them, and to grant a reversal, if appellants have been prejudiced thereby. The cases cited by appellees do not sustain their contention.
In Savannah R. Co. v. Smith (1890), 86 Ga. 195, 12 S.E. 579, the court says: "The controversy being one of fact only, * * * a fourth trial should be denied."
In Harrigan v. Savannah R. Co. (1890), 84 Ga. 793, 11 S.E. 965, the court says: "We do not discover any error in law."
In Van Doren v. Wright (1896), 65 Minn. 80, 67 N.W. 668, 68 N.W. 22, the court says: It is readily seen that such cases are not out of harmony with the rule above announced. We fully recognize the rule as stated by appellees that all questions reserved for review by an appellate court must be presented on the first appeal therefrom after the final judgment or not at all; for thereafter, all questions presented by the record will be considered as finally determined by the judgment, and all such questions not expressly affirmed or reversed, will, by implication, be deemed affirmed. Stevens v. Templeton (1910), 174 Ind. 129, 91 N.E. 563; Cleveland, etc., R. Co. v. Blind (1917), 186 Ind. 628, 117 N.E. 641. But, of course, where new questions arise, and such as were not and could not have been fully determined on the former appeal, such rule is without force. After an examination of the record, we conclude that there are questions presented by this appeal, not heretofore decided, which demand our consideration.
Appellants complain that the court erred in admitting evidence of the value of the land in controversy at the time of the death of Mrs. Kauffman, while appellees say that evidence to the same point was admitted at the former trial, but that the objection was waived by failure to state any point thereon, and that such question cannot therefore be presented on this appeal. Appellants dispute such condition of the record, and there is nothing in the opinion on the former appeal that enlightens us in this regard. We deem the matter not of enough importance to justify pursuing it further, for the admission of such evidence within itself would not be such error as would justify the reversal of the judgment.
Witness James E. Keck, after testifying to his social and business relations and dealings with Mrs. Kauffman, was asked the following question: "Basing your opinion your the business dealings with her and your other conversations with her, that you have detailed to the jury, your observations of her manner and demeanor and deportment, as you have described it, state whether or not she was a person of sound mind in your opinion in the year 1901, and thereafter, and particularly on the 13th day of August 1901." There were other questions having substantially the same meaning propounded to other witnesses. There was an objection to each of these questions by appellees upon the ground that each asked for an opinion as to Mrs. Kauffman's sanity at some particular time when they had not seen or conversed with her. These objections were each sustained and appellants excepted respectively to the rulings of the court. Appellees say that a non-expert witness cannot give an opinion that a person whom he saw and found to be sane at one time would remain sane until another particular time, more or less remote, and that such question is for the jury. In support of their contention, they cite Page, Wills § 390. That section states the rule to be that: We do not see that this section is helpful to appellees' contention. In the instant case, the witnesses who were asked their opinion of the mental condition of Mrs. Kauffman testified that they had known her for many years prior to making the deed in question and up until the time of her death. They had had business dealings and conversations with her; they had visited with her and she had visited with them in their home. Some of them had borrowed money of her and had testified as to her manner of transacting business, these occasions not being remote from the time of execution of the deed. And in answer to the respective questions propounded to them, in substance as above, a...
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