In re Rogers' Estate

• Decision Date: 07 February 1939
• Docket Number: 44605.
• Parties: In re ROGERS' ESTATE. v. KIRKWOOD et al. SINCO
• Court: Iowa Supreme Court

283 N.W. 906

226 Iowa 183

In re ROGERS' ESTATE.

SINCO v. KIRKWOOD et al.

No. 44605.

Supreme Court of Iowa.

February 7, 1939

Appeal from District Court, Decatur County; Homer A. Fuller, Judge.

This is a will contest. The trial court overruled a motion of the defendants, proponents of the will, for a continuance. Proponents appealed.

Reversed.

Stephen Robinson, of Des Moines, and G. F. Hoffman, of Leon for appellants.

O. M Slaymaker, R. E. Killmar, and D. D. Slaymaker, all of Osceola, and D. S. McGinnis, of Leon, for appellee.

STIGER, Justice.

Bertha Helms, an adopted daughter of Thomas Rogers, died in 1935 leaving a son, John Helms. Bertha Helms was a sister of Jennie E. Kirkwood who was adopted by Clemit Rogers, a brother of Thomas Rogers. Thomas Rogers died in 1937, leaving a last will and testament which gave all of his property, subject to the payment of debts, to his niece, Jennie E. Kirkwood and her husband Clarence. The will contained the following provision: " Having complete confidence that my niece, Jennie E. Kirkwood and her husband, Clarence Kirkwood of Des Moines, Iowa will amply provide and care for my grandson, Jack Douglas Helms, (John Helms) I leave all the residue and remainder of my property of whatsoever nature and description to the said Jennie E. Kirkwood and her husband, Clarence Kirkwood, or to the survivor of either."

On February 3, 1938, the guardian of John Helms commenced a will contest on the grounds that Thomas Rogers was of unsound mind and the beneficiaries, Jennie Kirkwood and husband, procured the testator to execute the will by coercion, fraud and undue influence. On or about February 20, the case was assigned for trial on March 2, 1938.

On March 1, 1938, respondents, Jennie E. Kirkwood and husband, filed a motion for a continuance of the cause until the next term of court because of the serious illness of Mrs. Kirkwood. The motion was overruled, the case proceeded to trial and a verdict was returned for the contestant. Whether respondents exercised undue influence was the only issue submitted to the jury.

Appellant-respondents' first assignment of error is that the court erred in overruling their motion for a continuance and ordering the case to trial. The motion was supported by an affidavit of a physician that Mrs. Kirkwood was stricken on February 28 with a painful and severe throat infection and her condition was so serious that to attend the trial on March 2 would seriously impair her health and might prove fatal, and that she should not attend trial for several days. No counter-affidavits were filed and it is not disputed that Mrs. Kirkwood was in the condition described by her physician. Mrs. Kirkwood's attorney filed an affidavit stating that her presence at the trial was necessary not only as a party to the action but also as a witness and also because her advice and counsel at the trial was necessary.

Code, Section 11443, reads: " 11443. Causes for. A continuance shall not be granted for any cause growing out of the fault or negligence of the party applying therefor; subject to this rule, it may be allowed for any cause which satisfies the court that substantial justice will thereby be more nearly obtained."

A motion for continuance addresses itself to the sound legal discretion of the trial court, and his ruling will not be interfered with on appeal unless the discretion has been abused and an injustice done the party denied the continuance. This discretion of the trial court is a judicial discretion to be governed and controlled by legal rules and must be exercised, not capriciously or oppressively, but for the prevention of injustice and oppression. Purington v. Frank, 2 Iowa 565; Childs v. Heaton, 11 Iowa 271; Peck v. Parchen, 52 Iowa 46, 2 N.W. 597; Baker v. Langan, 165 Iowa 346, 145 N.W. 513; Baker v. Jensen, 135 Or. 669, 295 P. 467.

It is unquestionably an important privilege of a party to be present at the trial of his cause, which should not be denied on a proper application made, unless for weighty reasons. 13 C.J. 138, Section 36.

In the case of Jaffee v. Lilienthal, 101 Cal. 175, 35 P. 636, 637, the court states: " It seldom happens that a trial can be properly had in the absence of the plaintiff, even where he is disqualified as a witness, especially where it is to be tried upon oral testimony. With all the care that can reasonably be taken by both attorney and client, some matter of vital importance is liable to be overlooked by them until the trial calls it to the recollection of the plaintiff, and this is especially true in relation to matters purely in rebuttal. It is the right of parties to be present at the trial of their cases. This right may be waived, and should be held to be waived, where the absence of the party is voluntary, and under circumstances which ought not to induce a reasonable man having a due regard for the rights and interests of others and of the public, all of whom are interested in the due and prompt administration of justice, to absent himself." See McMahan v. Norick, 12 Okl. 125, 69 P. 1047; Storer v. Heitfeld, 17 Idaho 113, 105 P. 55.

The case of In re Townsend's Estate, 122 Iowa 246 97 N.W. 1108, was a contest over a will. Alleged undue influence was denied by proponents who were beneficiaries under the will. They filed a motion for continuance because of the illness of the widow of testator who was one of the proponents and beneficiaries, which was overruled. The court, in reversing the case, states on page 249, 97 N.W. on page 1109: " The ruling on the motion for a...