Haman v. Preston
| Decision Date | 16 September 1919 |
| Docket Number | 32621 |
| Parties | CHARLES HAMAN et al., Appellees, v. W. A. PRESTON, Executor, et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Clayton District Court.--A. N. HOBSON, Judge.
ACTION brought after the will of Dorothea Corts was admitted to probate, to set aside Item 10 thereof, upon the ground of undue influence inducing the execution thereof. There was a verdict in favor of plaintiff, and defendants appeal.
Affirmed.
V. T Price, W. C. Lewis, and W. A. Preston, for appellants.
D. D Murphy & Son, for appellees.
It is the claim of plaintiffs that the defendant W. A. Preston, who wrote the will and signed same as a witness, was, at the time and long prior thereto, the attorney and confidential adviser of testatrix, and that he, by undue influence, induced her to execute Item 10 thereof, naming his wife as sole residuary legatee. These allegations present the only issue of fact submitted to the jury.
One of the principal grounds relied upon by appellants for reversal is that the verdict is not supported by, and is contrary to, the evidence; but, before proceeding to a discussion of this contention, we will dispose of some of the other questions raised by counsel.
I. Complaint is made in argument of certain of the court's instructions to which no exception was taken before the case was submitted to the jury. The case was tried in April, 1917, before Chapter 24, Acts of the Thirty-Seventh General Assembly, repealing Section 3705-a of the Supplement to the Code, 1913, went into effect. The time for filing a motion for new trial was, by consent of counsel, extended by the court, and the motion was filed within the time allowed. The only reference to the instructions in this motion is to Instruction No. 11, and is as follows: "The court erred in giving the eleventh instruction on its own motion to the jury." The original motion was filed on May 10, 1917; and, on November 13th following, which was before final argument, an amendment thereto was filed without leave of court, in which numerous exceptions and objections are urged to Instruction No. 11. The amendment was supported by affidavits of counsel, excusing their failure to except to the instructions before the case was submitted to the jury. Upon motion of counsel for plaintiff, the amendment was stricken from the files. The request of counsel for appellant, made at the time the court ruled on the motion to strike, for permission to file the same, was denied. Section 3756 of the Code requires a motion for new trial to be filed within three days after verdict, except when based upon certain grounds not involved in the present motion, unless the court for good cause extends the time therefor. The rule that amendments to a motion for new trial filed after the time provided by statute or allowed by the court will be permitted only when germane and proper to the object and purpose of the original motion is settled by numerous decisions of this court. Dutton v. Seevers, 89 Iowa 302, 56 N.W. 398; Guth v. Bell, 153 Iowa 511, 133 N.W. 883; Wiar v. Wabash R. Co., 162 Iowa 702, 144 N.W. 703; Hall v. Feagins, 169 Iowa 495, 151 N.W. 481; Reed v. Wellsburg, 179 Iowa 593, 161 N.W. 660.
Section 3705-a of the 1913 Supplement to the Code specifically required that:
Under the statute (Section 3709 of the Code) relating to exceptions to instructions, as it was prior to the enactment of Section 3705-a, exceptions must be taken within three days after the verdict, and might be included in a motion for new trial. Exceptions not taken within the time allowed were not considered upon appeal. Harrison v. Charlton, 42 Iowa 573; Bailey v. Anderson, 61 Iowa 749, 16 N.W. 134; Ewaldt v. Farlow, 62 Iowa 212, 17 N.W. 487; Maxon v. Chicago, M. & St. P. R. Co., 67 Iowa 226; Robinson v. Linn County, 71 Iowa 224, 32 N.W. 274. Extension of time in which to file a motion for new trial has been held not to extend the time within which to except to the instructions. Bush v. Nichols, 77 Iowa 171, 41 N.W. 608; Clark v. Reiniger, 66 Iowa 507, 24 N.W. 16; Harrison v. Charlton, supra; Bailey v. Anderson, supra.
The amendment which, as before stated, was filed several months after the time allowed by the court for filing the original motion for a new trial, contained a series of separately numbered exceptions to Instruction No. 11, none of which are in any way referred to or included in the original motion, which presented no objection or exception to that instruction that could be considered by the court for any purpose. Whether exceptions under the statute made in a motion for new trial be treated as a part of such motion and subject to the same rules relating to amendments or not, no exceptions were contained in the original motion, and could not, therefore, be supplemented by an amendment thereto. The provision of the statute permitting exceptions to be included in a motion for new trial does not contemplate that same may be filed in an amendment to such motion after the time allowed by statute. The amendment filed November 13, 1917, did not, in fact, purport to amend the original motion, but consisted only of exceptions to instructions given, and to the refusal of the court to give certain requested instructions. The exceptions were not, therefore, taken before the instructions were read to the jury, nor were they included in the motion for new trial, nor was the amendment germane to any matter contained in the original motion; and, therefore, the motion to strike was properly sustained.
II. Numerous instructions requested by counsel for defendant were refused by the court. The first of these instructions might well have been given; but Paragraph 9 of [186 Iowa 1297] the court's charge covered the point, and was not less favorable to the defendant than the offered instruction; and, therefore, no prejudice followed the refusal to give the same. The remaining instructions were argumentative in character, gave improper emphasis to certain parts of the evidence, and could not properly have been given in the form presented. The court's charge, in any event, sufficiently covered the thought of most of the requested instructions.
III. Objection to a certain question propounded by his counsel to the defendant Preston, that the witness was incompetent under Section 4604 of the Code, was made and sustained after the witness had answered. No request was made that the answer be stricken. Counsel for appellant argues that the question sought to elicit a conversation between Preston and deceased which had been...
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