In re Gerhardus' Estate

• Decision Date: 13 October 1925
• Citation: 239 P. 829,116 Or. 113
• Parties: IN RE GERHARDUS' ESTATE. v. RAYLEY. ANDERSON
• Court: Oregon Supreme Court

239 P. 829

116 Or. 113

IN RE GERHARDUS' ESTATE.

ANDERSON v. RAYLEY.

Supreme Court of Oregon

October 13, 1925

Department 2.

Appeal from Circuit Court, Multnomah County; George Tazwell, Judge.

In the matter of the estate of August Gerhardus, deceased. Action on claim by Benjamin C. Anderson against Emma Rayley, executrix. Judgment for plaintiff and defendant filed motion for new trial. From an order setting aside verdict and judgment, and granting new trial, plaintiff appeals. Affirmed.

This is an appeal from an order setting aside a verdict and judgment and granting a new trial. Plaintiff presented to the executrix of the estate of August Gerhardus, deceased, a claim for board, room, and washing, furnished to Gerhardus between October 1, 1913, and April 30, 1919, amounting in the aggregate to the alleged reasonable value of $2,320. The claim was rejected. Action was then commenced in the circuit court against the estate in accordance with section 3138, Or L., which, in part, provides:

"In a probate proceeding in which a claim is rejected by the administrator or executor, the claim may be presented to the court for rejection or allowance, as provided by section 1241 of Lord's Oregon Laws, or, if either party demand it, the claimant must in the first instance bring action against the administrator in the manner in which other actions are brought, and the cause be tried and disposed of in the same manner as any other action."

A verdict resulted against the estate in the sum of $1,000, and judgment was entered accordingly. On February 23, 1923, the executrix, on behalf of the estate filed a motion, supported by affidavits, for a new trial on the following grounds:

"(a) For accident and surprise in witness for claimant testifying that A. Gerhardus was an invalid, and in said Anderson basing his claim in part upon the theory that same was for caring for a tuberculosis patient, not having intimated same previous to trial.

"(b) Newly discovered evidence material to the defense, which could not with and after due diligence have been discovered and produced at or before trial.

"(c) Excessive judgment appearing to have been given under the influence of passion or prejudice.

"(d) Insufficiency of the evidence to justify the verdict."

The trial court, after a hearing on March 5, 1923, made and entered an order denying the motion for new trial. On March 27, 1923--during term time--an order was made, setting aside the previous one, and granting a new trial on the ground of newly discovered evidence, but through inadvertence it was not entered by the clerk until April 3, 1923, or on the second day of the next judicial term. Appellant...