In re Bishop's Estate
| Decision Date | 13 March 1906 |
| Citation | 106 N.W. 637,130 Iowa 250 |
| Parties | IN RE ESTATE OF L. BISHOP, Deceased, v. O. H. PEARSON, Admr'x, Appellee N. E. HAYDON, Claimant, Appellant, |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.-- HONS. JOSIAH GIVEN and W. H MCHENRY, Judges.
PROCEEDINGS for the establishment of a claim against the estate of L Bishop, deceased. The case was originally tried before Judge Given, resulting in a directed verdict for defendant. Judgment was rendered upon the verdict, and costs taxed to claimant. Thereupon, and within three days from the return of the verdict, claimant filed a motion to set aside the verdict and for a new trial, and upon June 14, 1904, filed an amendment to this motion. Judge Given having in the meantime retired from the bench, the motion for new trial was submitted to his successor, Judge McHenry, who denied it upon the ground that it had already been overruled by Judge Given and Judge McHenry directed the entry of a nunc pro tunc order showing the overruling of the motion by Judge Given as of date October 17, 1903, being the day upon which the original judgment entry was spread of record, although that entry bears date October 15, 1903. Judge McHenry's order was made June 15, 1904. On December 6th claimant perfected an appeal to this court.-- Reversed.
Reversed.
Crockett, Gillespie & Bannister, for appellant.
Clark & McLaughlin and McLennan & Brennan, for appellee.
The first point presented is one of practice. The appeal was not taken within six months from the rendition of the original judgment; and, if there be any appeal which we may consider, it is from the order overruling claimant's motion for a new trial or from Judge McHenry's order of date June 15, 1904. If Judge McHenry properly directed the entry of the nunc pro tunc order overruling the motion for a new trial as of date October 17, 1903, then an appeal from that order will lie, for the reason that it was not appealable until actually entered of record. Kennedy v. Bank, 119 Iowa 123, 93 N.W. 71.
On the other hand, if Judge McHenry was in error in ordering this nunc pro tunc entry and in overruling claimant's motion for a new trial upon that ground, then an appeal will lie from his order. That appeal may be taken from a ruling on a motion for a new trial, notwithstanding judgment has theretofore been entered is well settled. Boyce v. Timpe, (Iowa) 89 N.W. 83; Baldwin v. Foss, 71 Iowa 389, 32 N.W. 389; Patterson v. Jack, 59 Iowa 632, 13 N.W. 724; Bosch v. Bosch, 66 Iowa 701, 24 N.W. 517.
Indeed, it is the practice in many districts of this state to enter judgments immediately upon the return of a verdict, and the statute seems to countenance, if not to direct, such practice. This, of course, does not prevent the defeated party from moving for a new trial, and, if his motion be filed in time, he is entitled to a ruling thereon, and, if beaten, may appeal from the order denying his motion. So that the entry of judgment is no indication that the motion for new trial has been disposed of, nor does it necessarily involve the merits of the motion.
It is entirely immaterial, then, whether we treat the appeal as from the order of Judge McHenry, or from the one entered for Judge Given nunc pro tunc; for in either event the question to be considered is the correctness of the ruling on the motion for new trial. Judge McHenry did not find that a ruling on the motion inhered in the judgment dismissing claimant's petition and taxing the costs to her. On the contrary, he directed a separate entry showing the overruling of claimant's motion as of date October 17th, while the date of the judgment entry is October 15th.
II. The motion for new trial presents the question, was the court in error in directing a verdict for the administrator? Judge Given was of opinion, and held, that the claimant could not recover because she had not overcome a presumption that her services rendered the deceased were gratuitous; and the verdict was directed on that theory.
The testimony introduced showed that claimant did furnish board for the deceased and do his washing; but the court was of opinion that the circumstances under which they were rendered presumptively negatived any implied promise to pay...
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