Hawkey v. Williams

• Decision Date: 28 March 1955
• Docket Number: No. 2647,2647
• Citation: 73 Wyo. 463,281 P.2d 447
• Parties: Ethel HAWKEY, Plaintiff-Respondent, v. Jennie WILLIAMS, Executrix of the Estate of Nona Williams, Deceased, and Jennie Williams, Defendants-Appellants.
• Court: Wyoming Supreme Court

Page 447

281 P.2d 447

73 Wyo. 463

Ethel HAWKEY, Plaintiff-Respondent, v. Jennie WILLIAMS, Executrix of the Estate of Nona Williams, Deceased, and Jennie Williams, Defendants-Appellants.

No. 2647.

Supreme Court of Wyoming.

March 28, 1955.

H. Glenn Kinsley, Sheridan, Burt Griggs, Buffalo, for appellants.

Henry A. Burgess, Jack Wolfe, Sheridan, for respondent.

RINER, Chief Justice.

This is the second appearance in this Court of this case. The first one was disposed of by the opinion here reported in 261 P.2d 48. The volume of the Wyoming Reports wherein the opinion should and will subsequently be forthcoming has as yet not been issued. The judgment of the District Court of Sheridan County as set forth in the opinion thus reported was that, 261 P.2d 48, 54:

"Wherefore, it is hereby considered, ordered, adjudged and decreed by the Court that Plaintiff's petition be, and the same hereby is, dismissed and judgment is rendered in favor of the Defendants and against the Plaintiff for the cost of this action taxed at $8.25."

The pleadings of the parties and the facts and evidence shown by the record at that time are rather fully stated in the opinion aforesaid, and it will be unnecessary to report them here. The record then was viewed by us in the light of our decision in Boyle v. Mountford, 39 Wyo. 141, 147, 270 P. 537, 539. The opinion in the Boyle case was written by District Judge Brown and concurred in by Mr. Chief Justice Blume and Mr. Justice Kimball. The quoted language of the Boyle case was approved in subsequent decisions of this Court; and it was pointed out in our first opinion herein that in the subsequent decisions of this Court, viz., Northwest States Utilities Co. v. Brouilette, 51 Wyo. 132, 65 P.2d 223, 69 P.2d 623; Brown v. Wyoming Butane Gas Co., 66 Wyo. 67, 205 P.2d 116; Chandler v. Dugan, 70 Wyo. 439, 251 P.2d 580, the language of 64 C.J. 432, 433, § 426; 88 C.J.S., Trial, § 255, was approved as follows, 261 P.2d 48, 55:

"By moving for a directed verdict, the maker of the motion admits the truth of whatever competent evidence the opposing party has introduced, and indeed, of all opposing evidence, or evidence on behalf or in favor of the adverse party, or facts stated in the evidence adduced, not only of all that the testimony proves, but of every material or ultimate fact which it tends to prove, in the slightest degree, together with all fair and reasonable inferences or conclusions of fact favorable to the adverse party, fairly or reasonably inferable or deducible therefrom by a jury."

See also 64 C.J. 382 to 385, § 377; 88 C.J.S., Trial, § 234; 4 C.J. 762, § 2706, and 5 C.J.S., Appeal and Error, § 1559, p. 338.

Our examination of the record as it then stood resulted in a conclusion expressed in the following language, 261 P.2d 48, 68:

'It will be understood that what is said herein, is grounded upon the record now before us. If other matters should appear later which would materially change the factual situation then the trial court can very well mold properly the relief granted to meet the changed conditions.

'Our conclusion therefore is as already intimated that the judgment below should be reversed and the cause remanded with instructions to overrule the aforesaid motion to dismiss and for such further proceedings as the parties may desire to pursue and not inconsistent with the views herein expressed and as justice may require.'

Accordingly, under the mandate of this Court, the cause was retried by the same judge before whom the record had been made as submitted on the first appeal herein. The evidence as there used plus additional evidence on behalf of both parties was again submitted on the second hearing in the District Court. The conclusion of that Court with the evidence of both parties then received and completed before it was contrary to what it had previously announced. A general finding with other special findings of fact was made in favor of the plaintiff and against the defendant, and a judgment together with costs in favor of the plaintiff and against the defendant was rendered. From this judgment, the defendant has appealed, and the evidence adduced by both parties is now before us for review.

Before proceeding further, we desire to call special attention to certain well-established principles of appellate procedure which are so often overlooked or disregarded by litigants who bring cases to this Court and then experience disappointment at the results obtained here.

In the case of Christensen v. McCann, 41 Wyo. 101, 106, 282 P. 1061, 1062, it was said:

'The evidence of the parties themselves and their witnesses was in many respects conflicting concerning the facts upon which the findings of the trial court relating to negligence were based, and hence under the familiar rule of appellate procedure, so often adverted to by this court, we can only look into the record to see if there is substantial evidence therein to support the findings of the court below. If there is, we cannot review the facts, even though, were we hearing the case originally, we might feel inclined to come to a conclusion different from that reached by the trial court.' See also Williams v. Yocum, 37 Wyo. 432, 263 P. 607, and cases cited, Meyer v. Culley, 69 Wyo. 285, 241 P.2d 87, and cases cited, and Benham Const. Co. v. Rentz, 69 Wyo. 176, 238 P.2d 927, and cases cited.

In Willis v. Willis, 48 Wyo. 403, 429, 49 P.2d 670, 678, it was announced that:

'* * * the appellate court must assume that the evidence in favor of the successful party is true, leave out of consideration entirely the evidence of the unsuccessful party in conflict therewith, and give to the evidence of the successful party every favorable inference which may be reasonably and fairly drawn from it. 4 C.J. 857. The arguments of counsel trying to show how unsubstantial is defendant's evidence are so many that, to keep this opinion within reasonable bounds, we cannot attempt to answer them one by one. And it must be remembered that the credibility of witnesses was a matter for the trial court. * * *' (Italics supplied.)

In Jacoby v. Town of City of Gillette, 62 Wyo. 487, 510, 511, 174 P.2d 505, 514, 177 P.2d 204, 169 A.L.R. 502, and numerous cases there cited where appellants--as frequently is the case and is so in the instant case--come here with a general finding of the district court against them, we have repeatedly said:

'The appellants come here with a general finding of the trial court against them. Concerning the effect to be given such a finding, this court has said in Hinton v. Saul, 37 Wyo. 78, 259 P. 185, at page 191, that: 'And in causes tried to a court, a general finding is one of every special thing necessary to be found to sustain the judgment.'

'And in Wallis v. Nauman, 61 Wyo. 231, 238, 157 P.2d 285, 286, it was pointed out that in Knaggs v. Mastin, 9 Kan. 532, 533, the Supreme Court of Kansas in an opinion assented to by Mr. Justice Brewer said: "Where facts are established by a general finding of a court, it must always be presumed that all the controverted facts are established in favor of the party for whom the court finds, and against the party against whom the court finds."

'See the Wallis case just cited also for other authorities on the same point.'

Recalling as above mentioned that the trial court was the judge of the credibility of the witnesses in the instant case in addition to the testimony in evidence which has already been quite fully reviewed in the opinion heretofore filed, we now examine the evidence which was adduced on the second hearing of this matter and refer to some significant portions thereof appearing in the record made when the second hearing was had. It would seem that we have now an obvious case of serious conflicting evidence which was required to be resolved by the trial judge taking the two records together as must be done inasmuch as the plaintiff offered, and it was received without objection, 'the entire Record on Appeal, Supreme Court Case No. 2585 and Sheridan County District Court Case No. 11165, consisting of all the original papers of this case and all the testimony and all the documentary evidence as shown from pages 1 through 126, together with the Mandate which was returned by the Supreme Court to the District Court under date of October 19, 1953.' This set forth all evidence submitted then by the plaintiff only, as we have seen. Supplementing it, thereupon Jennie Williams, the defendant, was called to the witness stand by counsel for the plaintiff 'for cross-examination under the statute.' She testified in part as follows: Her name is Jennie Williams. She is the defendant in this case, and also the executrix of the Last Will and Testament of Nona Williams, deceased. On the former hearing of this case, there was a discussion of a quitclaim deed which was signed by Jennie and her sister, Ethel, wherein each deeded the one-third interest that each respectively had in their father's estate to their mother. In that deed it was recited that the consideration was one dollar and other valuable consideration. Jennie does not remember exactly what the quitclaim deed said. She does not remember that the one dollar was paid. There was no consideration for this deed by Jennie and Ethel to their mother other than the dollar. The approximate date of that deed was May 28, 1934. The petition for the probate of the father's estate was dated the same day as the deed signed by the two sisters to their mother. That petition was filed on the 31st day of May 1934 and subscribed and sworn to on the 28th day of May 1934. On or about that date their mother, Nona, may have made a will leaving all of the property equally to Jennie and Ethel. Jennie has reason to believe that she did do so. She was in the habit of treating them exactly alike. There was no promise, no consideration of that sort made. What Jennie thought it was and what was said have no relationship. 'Q. Did...