Hedderich v. Hedderich

• Decision Date: 12 November 1909
• Citation: 18 N.D. 488,123 N.W. 276
• Parties: HEDDERICH v. HEDDERICH.
• Court: North Dakota Supreme Court

18 N.D. 488

123 N.W. 276

HEDDERICH

v.HEDDERICH.

Supreme Court of North Dakota.

Sept. 23, 1909.

On Petition for Rehearing, Nov. 12, 1909.

Syllabus by the Court.

A notice of appeal from a final judgment is ineffectual to bring up for review an order made after judgment denying a motion for a new trial, where such notice merely recites that defendant appeals from the judgment, and asks for a review of such order on said appeal. Furthermore, the undertaking on appeal makes no reference to such order, and, following the rule recently announced by this court in Sucker State Drill Co. v. Brock, 120 N. W. 757, such attempted appeal, conceding that defendant attempted to take an appeal from the order, was wholly abortive.

Where a motion for a new trial is made and denied after judgment and the appeal is from the judgment alone, the order denying the motion is conclusive as to all matters passed upon by the trial court on such motion, except errors properly appearing upon the judgment roll, which errors may always be reviewed on the appeal from the judgment.

Assignments of error, in order to be available to appellant, must be based upon rulings which are reviewable in this court. It is accordingly held that the assignments relating to alleged insufficiency of the evidence and challenging the correctness of the order denying the motion for a new trial cannot be considered on this appeal.

Assignments based on alleged erroneous instructions to the jury where no exceptions were saved to such instructions, and assignments predicated on alleged erroneous rulings on the admission or rejection of testimony, where such testimony is not material in view of the other facts found by the jury, will not be considered.

In a proceeding to determine the validity of the last will and testament of one H., the jury, by their special verdict, among other things, found that the execution of such will was the free act and deed of the testator; that the same was not executed under or in consequence of any undue influence exerted upon testator's mind by any other person; that the interpleader, who claimed to be the lawful issue of the deceased and an Indian woman known as “Medicine,” and the sole heir of such deceased, was intentionally omitted by the testator as a devisee or legatee under the will; and that at the date of the execution of such will the testator was of sound mind. Such findings had the effect of eliminating as immaterial all other contested issues; hence alleged errors predicated upon the court's action with reference thereto need not be considered.

The question as to whether the testator was of sound mind at the time of executing such will was submitted to the jury, and they reported their inability to agree as to the answer to be made, whereupon the court, on motion of respondent's counsel, directed an affirmative answer thereto. Held not error, as there is no evidence upon which the jury could properly have made a negative answer to such question.

Certain assignments based upon alleged erroneous rulings on the admission of nonexpert testimony as to the mental condition of the testator at the time of making the will are overruled, as such rulings, if erroneous, were not prejudicial for reasons stated in the opinion.

Appeal from District Court, Williams County; Goss, Judge.

Petition by Grace D. Hedderich to the county court for the probate of the will of August M. Hedderich, deceased. The petition was opposed by Gus M. Hedderich, Jr., and, from a judgment in proponent's favor, he appealed to the district court, where judgment was also rendered for proponent, and he appeals. Affirmed.

Palda & Burke (John E. Greene, of counsel), for appellant. A. L. Knauf and Ball, Watson, Young & Lawrence, for respondent.

FISK, J.

This litigation arose in the county court of Williams county, and involves the validity of the last will of one August M. Hedderich, deceased. Plaintiff and respondent, the widow of the deceased, and who claims to be his sole heir and legatee, filed in such county court a petition praying for the probate of such will. The appellant, who claims to be the lawful issue of an alleged marriage between the deceased and one Pazutah, an Indian woman, known as “Medicine,” was permitted to intervene in such probate proceedings. By his petition in intervention appellant alleged the fact of such marriage on July 1, 1879, and that he is the lawful and sole issue thereof, having been born on March 25, 1880. He also alleged, in substance, that deceased was induced to make such will through the undue influence of others, by the terms of which will he was wholly omitted and his name was not mentioned as a legatee, although, as alleged by him, he was the sole surviving heir at law of such testator; also, that at the time of making such will the said testator was of unsound mind, and not mentally capable of making a will or of transacting ordinary business, and praying, among other things, that such will be refused probate, and that he be decreed to be the sole heir of the decedent. The respondent answered, putting in issue all of the allegations of the petition, except the fact of the execution of the will by the deceased and the date of defendant's birth. The issues thus framed were duly adjudicated in the county court, resulting in a judgment in plaintiff's favor upon each of such issues. Upon appeal to the district court, a jury trial was demanded and had, which also resulted in a judgment in plaintiff's favor, from which judgment this appeal is prosecuted.

Certain questions of practice are presented which require brief notice. After the entry of judgment, a motion for new trial was made embracing all the grounds urged on the appeal from the judgment. Such motion was denied, and it was the evident intent of appellant's counsel to appeal both from the judgment and from the order denying such motion. It is very apparent, however, that the attempted appeal from the order was ineffectual. The notice of appeal recites that defendant “appeals * * * from the judgment, * * * and that upon such appeal * * * defendant will ask for a review * * * of the order * * * overruling the motion * * * to set aside the verdict * * * and to grant a new trial thereof.” The undertaking on appeal in no way refers to or mentions the order denying such new trial, but is merely an undertaking for the payment of the costs on the appeal from the judgment. Following the rule recently announced by this court in Sucker State Drill Co. v. Brock, 120 N. W. 757, the attempted appeal from the order must be held to be ineffectual. It is respondent's contention that, in view of the fact that appellant urged on his motion for a new trial all the questions now urged on the appeal from the judgment, that the order denying such motion is, in effect, res judicata, and can be reviewed by this court only on an appeal from the order. Numerous cases are cited and relied upon in support of such contention, but we find none directly in point, and we have been unable, through an extended research, to find any authority for such a rule. The principal cases relied on are from Indiana, where they have a statute providing for a review by action in the trial court of judgments therein rendered. Such statutory review is not, as counsel contend, strictly analogous to our statutory motion for a new trial. See the article on Review in 18 Encyc. Pl. & Pr. 989-1052, for a full treatment of the subject. Even in the few states where such remedy exists a concurrent remedy by appeal is provided for by statute. While the writer's attention has not been directed to any authority expressly holding that an order denying a new trial is not conclusive as to errors apparent on the judgment roll, there are many authorities which inferentially so hold, and no doubt such is the correct rule. In Satterlee v. M. B. A., 15 N. D. 92, 106 N. W. 561, a motion for a new trial was made and denied after the entry of judgment. Such motion was made on the ground that the evidence was insufficient to justify the verdict, and also for errors of law occurring at the trial. An appeal was taken from the judgment alone, and the court assumed the right to pass upon the alleged errors of law. It is true that the question here raised was not suggested nor passed upon in that case. In Gade v. Collins et al., 8 S. D. 322, 66 N. W. 466, it was said: “Unless the order denying or granting a new trial made after judgment is appealed from, either in connection with the appeal from the judgment or independently, the decision of the court below upon the question of the sufficiency of the evidence to justify the findings or verdict will be res adjudicata.” The court there at least inferentially held that as to other questions the decision of the court below on the motion for a new trial was not res judicata. To the same effect is the holding in Rogers v. King, 66 Barb. (N. Y.) 495, and many other authorities too numerous to mention. A proceeding for a new trial is held to be an independent proceeding not in the direct line of the judgment. As said by Chief Justice Sawyer in Spanagel v. Dellinger, 38 Cal. 284: “Under our system, from the entry of the verdict or filing of the findings of the court, the motion for new trial is a kind of episode, or in a certain sense a collateral proceeding-a proceeding not in the direct line of the judgment, for the judgment may be at once entered and even executed, while a motion for a new trial is pending in an independent line of proceeding, which ends in an order reviewable on an independent appeal. The motion may be heard and decided, and an appeal taken on its own independent record, while the proceedings on and subsequent to the judgment may be still regularly going on, and even an independent appeal taken in that line.” As stated in 1 Spelling New Trial & Appellate Practice, § 14: “The foregoing is only true in those states where the order on motion for new trial is an...