Hazuka v. Jelinek's Estate
| Decision Date | 19 October 1945 |
| Docket Number | 31923. |
| Parties | In re JELINEK'S ESTATE. HAZUKA v. JELINEK'S ESTATE et al. |
| Court | Nebraska Supreme Court |
Appeal from District Court, Douglas County; Fitzgerald Judge.
Syllabus by the Court.
1. In a probate proceeding five separate claims were filed heard and disallowed. All claimants took the necessary steps to perfect an appeal. The county court included the entire proceedings in one transcript, covered by one certificate which was filed in the district court. It is held that the district court acquired jurisdiction to hear and determine the claim involved in this action.
2. Under the provisions of section 25-1202, R.S.1943, a person is not incompetent to testify by reason of having a direct legal interest in the result, unless it clearly appears that he will gain or lose by the direct legal operation and effect of the judgment or final order that may be rendered in the proceeding in which the testimony is offered, or that the judgment that may be pronounced in that proceeding would be legal evidence for or against the witness in some other action.
J. J. Krajicek and S. L. Winters, both of Omaha, for appellant.
Fitzgerald, Tesar & Welch, of Omaha, for appellee.
Heard before SIMMONS, C. J., PAINE, CARTER, MESSMORE, YEAGER, and CHAPPELL, JJ.
Plaintiff filed a claim for money loaned against the estate of Sophie Jelinek. Hearing was had in the county court and the claim disallowed. Plaintiff appealed to the district court. Defendants, in the district court, moved to dismiss the appeal on the ground that the transcript was insufficient to confer jurisdiction. The trial court overruled the motion. Issues were made in the district court and trial had. At the close of plaintiff's case in chief, on motion of the defendants, the trial court dismissed the action. Plaintiff appeals and defendants cross-appeal. We sustain the judgment of the trial court on the matter of jurisdiction and reverse its judgment of dismissal of the cause.
The transcript of the county court, which was filed in the district court, shows the following proceedings in the court.
A petition was filed for the appointment of an administrator of the estate of Sophie Jelinek, deceased. Letters of administration issued, and the administration of the estate proceeded. Mary Hazuka, hereinafter called the plaintiff, filed a claim for money loaned to the deceased in the amount of $560.82. The administratrix filed objections to the allowance of the claim. Hearing was had and the claim was disallowed. Rose Tesnohlidek, a sister of plaintiff, James Jelinek and Joseph Jelinek, brothers of the plaintiff, each filed separate claims, similar as to form and substance. Separate similar objections were filed by the defendant administratrix, and separate and similar orders entered. There was also a claim for labor filed by John Tesnohlidek, husband of Rose, to which objection was made and the claim disallowed. Each of the parties gave separate appeal bonds.
The county judge combined the proceedings in one transcript, to which one certificate was attached. It was filed in the district court under the title, 'In the Matter of the Estate of Sophie Jelinek, Deceased.'
Thereafter, the defendants in the district court filed a motion to dismiss the appeal of the claim of the plaintiff, for the reason that she had failed to confer jurisdiction upon the court; that the court was without jurisdiction to hear the matter, and, in the alternative, to dismiss the claim for the reason that plaintiff had failed to file a petition as required by statute. Separate similar motions were filed as against each of the other claims. The trial court by one order overruled these motions.
Defendant by cross-appeal contends that the trial court erred in overruling the motion to dismiss the appeal of plaintiff, and urging that it was necessary for each claimant to file a separate transcript with reference to each claim in order to confer jurisdiction upon the district court.
Section 30-1601, R.S.1943, provides for an appeal from any final order, judgment, or decree of the county court. Section 30-1605, supra, provides that when such appeal is taken, the county court shall, on payment of his fees, transmit to the clerk of the district court a certified transcript of the record and proceedings relative to the matter appealed from. Section 30-1606, supra, provides that upon the filing of such transcript in the district court, that court shall be possessed of the action, and shall proceed to hear, try and determine the same, in like manner as upon appeals brought upon the judgment of the same court in civil actions. Other procedural steps are not in issue. Section 30-1608, supra, provides that if a claimant, appealing on account of disallowance of his claim, shall fail to enter such appeal in the district court as required, the district court may dismiss the appeal.
The five claims included in the transcript were treated by the parties as separate distinct claims in the county court and in the district court. It is not contended that the transcript of the county court failed to set out in any particular any of its record and proceedings relative to the claim of this plaintiff. The inclusion of other matters not necessary to her appeal did not prevent the vesting of jurisdiction in the district court and did not require that court to dismiss the appeal. We find the cross-appeal to be without merit.
In her petition in the district court plaintiff alleged that Joseph Jelinek died May 18, 1939, leaving surviving his widow Sophie, and four children, Joseph and James Jelinek, Mary Hazuka and Rose Tesnohlidek; that his estate was probated and a residue of personal estate, amounting to $2,243.28, was equally divided among the four children; that on January 16, 1940, this plaintiff loaned to Sophie Jelinek the sum of $560.82 (the one-fourth of the residue) that under an oral agreement the latter agreed to reapy to the plaintiff; that Sophie Jelinek died January 27, 1943; and that the payment was not made. She prayed judgment for that amount.
Defendant estate and administratrix answered admitting the death of Joseph and Sophie Jelinek and the survivorship of the four children of Joseph. It further was alleged that Joseph, by his will which was probated, devised real estate to his widow and the residue to his four children; that an agreement was entered into between the widow, Sophie Jelinek, and the plaintiff, whereby the widow agreed to renounce her claim for a widow's allowance, homestead rights, and to take by statute if plaintiff would make provision for her support; and that pursuant to said arrangement plaintiff voluntarily gave said sum of money to Sophie Jelinek as a gift and not as a loan. Payment also was pleaded. The reply was a denial.
We review the evidence in the light of the rule often stated by this court that 'A motion for a directed verdict must, for the purpose of a decision thereon, be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed, and said party is entitled to have every controverted fact resolved in his favor, and to have the benefit of every inference that can reasonably be deduced from the facts in evidence.' Kline v. Metcalfe Construction Co., Neb., 19 N.W.2d 693, 696.
Plaintiff contends that she offered competent and sufficient evidence to sustain the following factual situation.
The home property was devised by the father of plaintiff to the deceased, who was the stepmother of plaintiff. It consisted of a large house and a lot. The stepmother did not desire to live there alone. She went to live with the plaintiff. There was a family meeting one night in July, 1939, at which were present the four children of Joseph Jelinek, a son-in-law and a daughter-in-law, and the stepmother. The stepmother proposed that the children loan her the residue of the estate so that she could build a small house upon the rear of the property and there have a home. The four children agreed that each would loan his share to her for that purpose, and she agreed to repay them. When the estate was closed, the residuary share of each amounted to $560.82. Checks were made out for that amount to each of the children. Plaintiff endorsed her check and it was delivered to the stepmother, who cashed it and received the money. The claims of the other sister and two brothers are based upon similar oral agreements had with each and similar dispositions of their individual shares of the residue.
Plaintiff to sustain her position offered her brother James as a witness it being admitted that he had a similar claim pending against the estate. He was asked to repeat the conversation had at the family conference. Objection was made tht he was an incompetent witness. The objection was based upon section 25-1202, R.S.1943. He was permitted to testify, subject to a motion to strike. He testified as to a conversation between his sister, the plaintiff, and the stepmother. He stated that the stepmother asked for the loan to build...
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