In re Coleman's Estate
| Decision Date | 29 July 1947 |
| Docket Number | 46979. |
| Citation | 28 N.W.2d 500,238 Iowa 768 |
| Parties | In re COLEMAN'S ESTATE. KILLION v. SMITH. |
| Court | Iowa Supreme Court |
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L W. Powers and E. A. Norelius, both of Denison, for appellant.
E A. Raun and Milo Jensen, both of Denison, for appellee.
I. The case was tried to the court without jury and under a stipulation that permitted the court to reserve rulings on objections to testimony. No such rulings were thereafter requested by either party nor where any made by the court. Appellant's only complaint of this is that 'the court erred in failing to overrule objections of claimant to testimony offered by the administrator.'
Only two instances of this character appear in the Record. In each, claimant (appellee) urged the incompetence of appellant's witness (decedent's son) under the 'dead man's statute.' Code 1946, § 622.4. The failure to rule surely did not imply that the objection was sustained. The burden of demanding a ruling rests upon the one desiring it. Federal Schools v. Barry, 195 Iowa 703, 192 N.W. 816; Gaar, Scott & Co. v. Nichols, 115 Iowa 223, 88 N.W. 382; 4 C.J.S., Appeal and Error, § 322. Presumably this would be the one urging the objection or motion. It is said: 'If a party permits the court to proceed to judgment without action upon his motion or objection, he will be held to have waived the right to have the same acted upon.' 3 Am.Jur., Appeal and Error, § 270.
If the trial court acted on that principle here he must have treated claimant's objections to the offered testimony as waived and if so the appellant had the benefit of the offered testimony. At any rate we cannot assume the objections were sustained.
We do not commend the procedure adopted. But having been agreed to by the parties and no demand for ruling having been made by either we cannot hold that there is any ground for reversal for the trial court's neglect to rule.
II. Error is assigned upon the trial court's alleged failure to file findings of fact and conclusions of law as required by Rule 179, Iowa Rules of Civil Procedure. The Judgment Entry recites in substance that the evidence of claimant supports the allegations of her petition and that the executor failed to support the allegations of his answer; also that the contract claimed upon was executed by decedent and that claimant performed the services required by the contract and was entitled to recover.
It is true no formal findings of fact and conclusions of law were filed and the recitals in the Judgment Entry were hardly adequate. But Rule 179(b) provides: 'On motion * * * filed within the time allowed for a motion for a new trial, the findings may be enlarged or amended, and the judgment modified accordingly.'
Appellant did not avail himself of this procedure. On the contrary, when the proposed Judgment Entry was submitted to his attorneys they endorsed it 'O.K. as to form.' He cannot now predicate reversible error upon the court's omission to file formal or more elaborate findings.
III. We have next to consider whether the evidence is sufficient to support the judgment. The proceedings were at law and not reviewable here de novo. In re Estate of Martens, 226 Iowa 162, 283 N.W. 885. The agreement to permit the court to reserve rulings on objections to testimony did not have the effect of transferring the case to equity. Petersen v. New York Life Ins. Co., 225 Iowa 293, 280 N.W. 521. The decision of the trial court is entitled to the same weight as is accorded the verdict of a jury. In re Estate of Moylen, 219 Iowa 624, 258 N.W. 766.
These propositions are conceded by appellant but he nevertheless questions the sufficiency of the evidence to support the decision here, citing numerous cases. Some were early cases developing or announcing the concept of the trial court's judicial discretion in granting new trials; others involved the question of setting aside verdicts on appeal because not supported by the evidence.
We find no analogy between the situation in any of these cases and the record here. Manifestly each case must stand on its own bottom. The general principle is well stated in appellant's brief, quoting from Pekarek v. Meyers, 159 Iowa 206, 210, 140 N.W. 409, 410: 'Where there is dispute in the evidence, or where it appears from the evidence that honest minds searching for the truth might, on the whole record, reach different conclusions as to what the truth is, the case is for the jury.'
Appellant argues that the court erred in failing to hold as a matter of law: (1) that decedent's apparent signature to the contract was not genuine; (2) that confidential relation existed between decedent and claimant imposing upon the latter the burden of negativing constructive fraud; and (3) that the written contract was superseded by a later arrangement between claimant and decedent's guardian under which payment had been made.
It is to be said no question was ever raised as to the rendition or value of the services rendered.
IV. Decedent was an aged woman living at Carson, in Pottawattamie County. During the later years of her life she was quite helpless and unable to walk or care for herself. She was very heavy and had to be lifted into and out of bed from and to her wheel chair.
Claimant came from Dow City to care for her mother March 6, 1941. She remained with her until the latter died, December 18, 1944, except for a period of about three months in 1944 (July to October) when decedent was not at home. She originally came pursuant to a conversation with her brother Roy Coleman who lived in the vicinity of Oakland, about seven miles from Carson. What if any financial arrangement was made is not clear. Roy says she agreed to accept $5 per week. She denies having had any conversation with him about it.
The written contract relied on by claimant is dated October 1, 1943, over two and one-half years after she commenced work. It was drawn by a lawyer at the request of claimant, and he delivered it to claimant in duplicate. It provided for $20 per week from March 6, 1940. Claimant on the trial admitted the date should be March 6, 1941, and amended her claim accordingly.
No witness testified to having seen decedent sign the contract. The lawyer who drew it and the banker at whose bank decedent did business for fifteen years testified and expressed the...
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