Irwin v. Lattin

• Decision Date: 02 April 1912
• Parties: L. E. B. IRWIN and Frank M. Andrews, Plaintiffs and respondents, v. SARAH B. LATTIN, Executrix of the Last Will of Mary G. Bumgarner, Defendants and appellants.
• Court: South Dakota Supreme Court

29 S.D. 1, 135 N.W. 759 (1912)

L. E. B. IRWIN and Frank M. Andrews Plaintiffs and respondents v SARAH B. LATTIN,

Executrix of the Last Will of Mary G. Bumgarner

Defendants and appellants.

South Dakota Supreme Court

Appeal from Circuit Court, Kingsbury County, SD

Hon. Alva. E. Taylor, Judge

Affirmed

D. A. Crawford

Attorney for appellants.

Warren & Warren

Attorneys for respondents.

Opinion filed April 2, 1912

SMITH, J.

On the 22d of December, 1904, Mary J. Bumgarner, a resident of Kingsbury county, in this state, made a will, devising her property, real and personal, to the National Spiritualists' Association of the United States, with headquarters at Washington, D. C.; said property, or the proceeds thereof, to be used by said association for spiritualist work. On the 26th day of March, 1908, she was adjudged incompetent by the county court of Kingsbury county, in a guardianship proceeding in which the plaintiff F. M. Andrews was appointed guardian of her estate. On the 8th day of February, 1909, she was adjudged insane by the commissioners of insanity of Kingsbury county and committed to the Hospital for the Insane at Yankton, where she remained until her decease, February 25, 1910. She left surviving her as next of kin a sister, Mrs. Irwin, one of the plaintiffs in this action. On the 24th of March, 1910, the heirs, Mrs. Irwin, and her husband joined in a conveyance of a quarter section of land in Kingsbury county, which is the subject of this litigation; to the former guardian, Frank M. Andrews. Mrs. Irwin and Andrews join as plaintiffs in this action. The defendant Sarah B. Lattin is the executrix of the last will of Mary G. Bumgarner. On the 22d of March, 1910, Sarah B. Lattin filed a petition in the county court for probate of the will. Mrs. Irwin and F. M. Andrews filed objections to the probate of the will, alleging that the deceased, at the time of the execution thereof, was mentally incompetent; that at the time of the execution of the will she was an insane person, a victim of insane delusions, and lacked testamentary capacity; that she was a believer in the doctrine of spiritualism, which had so worked upon her mind that at the time of the execution of the will, and long prior thereto, she was insane, and in the making of said will was acted upon and coerced by insane delusions to such a degree that said will was not a voluntary act on her part. Appellant's answer placed in issue the testamentary capacity of the deceased.

On the trial, the county court entered an order and judgment, denying probate of the will on the ground that the testatrix lacked testamentary capacity, and was insane, and a victim of insane delusions which directly influenced her in making the will. An appeal was taken to the circuit court, where the issue was again tried, and on April 3, 1911, the circuit court entered findings of fact and conclusions of law in conformity with the decision of the county court, denying probate of the will. This appeal is from the proceedings at the trial in the circuit court.

Appellant's brief wholly fails to conform to the requirements of chapter 15, Laws of 1911, in that it does not contain a statement of the facts or of the assignments of error, nor of the proceedings at the trial, essential to an understanding of the questions sought to be reviewed on this appeal. The brief contains only allusions and references to certain portions of the bill of exceptions, where such matters are supposed to be found. This practice will not be recognized by this court, but, as indicated in one of our recent decisions, because of the unsettled condition of the practice under the provisions of chapter 15, Laws of 1911, we shalt not refuse to consider appeals already taken without a proper compliance with the law. We shall therefore consider the questions presented by the record as before us on this appeal.

The case was tried to the court, without a jury, on the sole issue of testamentary capacity of the deceased, and findings of fact, conclusions of law, and a judgment were entered by the trial court on April 6, 1911. This appeal is from the judgment "and the findings of fact and conclusions of law in connection therewith." On May 5, 1911, appellant served and filed notice of appeal, and on May 20, 1911, perfected the same by serving and filing an undertaking. On May 3, 1911, appellant served notice of motion for new trial, and on August 28, 1911, about three months after the appeal was perfected, the trial judge entered an order denying a new trial, which was filed on August 29, 1911. A transcript of the evidence and proceedings at the trial was procured by appellant, which was certified by the trial judge on the 1st day of September, 1911, and filed in the office of the clerk on the 5th day of September, 1911. This appeal is from the judgment and the findings of fact and conclusions of law in connection therewith, and no appeal is taken from the order denying the motion for a new trial. This appeal, therefore, must be considered as though there had been no motion for new trial.

This court has held that,

"when the motion for a new trial is made and determined before a judgment is entered in the action, an appeal from the judgment brings up the order of the court, denying or granting a motion for a new trial, as an intermediate order that can be reviewed by this court, providing the decision of the court, denying or granting a motion, is assigned as error. ... But when the order, denying or granting a new trial, is made after judgment in the action, an appeal from the judgment alone does not bring up such order made after judgment. ... 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 finding or verdict will be res adjudicata."

This rule has been many times announced by this court. In Foss v. Van Wagenen, 20 S.D. 39, 41, 104 N.W. 605, 606, after citing a large number of decisions of this court, it is said: "Following the rule laid down in these cases, this court must disregard the evidence in the case upon this appeal from the judgment alone, and decide the case upon the judgment record alone."

It appears from the record on this appeal that the order denying a new trial was made and filed three months or more after the appeal from the judgment had been perfected, and that the motion was founded, in part, upon insufficiency of the evidence to sustain the findings of the trial court, and the precise insufficiency of evidence stated in the motion for a new trial is 'restated in the assignments of error upon this appeal; and appellant, without appealing from the order, denying a new trial, again seek to review the sufficiency of evidence to sustain the findings off act. In the motion for a new trial, insufficiency of the evidence to sustain the findings is thus specified:

"That (1) finding No. four (4) is not supported by the evidence. (2) That finding No. five (5) is not supported by the evidence. (3) That finding No. six (6) is not supported by the evidence."

The assignments of error upon this appeal are in identical language. It is thus apparent that the question of insufficiency of the evidence was presented to the trial court and decided adversely to appellant; and that no appeal has been taken from such ruling. The ruling of the trial court has therefore become the law of the case upon this appeal, and the question of the sufficiency of the evidence to justify the finding is res adjudicata, and cannot be reviewed.

It is not necessary, at this time, to decide whether the sufficiency of the evidence might be reviewed upon exceptions to the findings of fact, with sufficient specifications of the particulars in which the evidence is deemed insufficient, together with proper assignments in this court. But even if that question were before us, the assignments of error in the record contain no specifications of the particulars in which the evidence is insufficient to sustain the findings; and for that reason the insufficiency of the evidence would not be reviewed.

In the case of Boettcher v. Thompson, 21 S.D. 169, 110 N.W. 108, an action to determine adverse claims to real property, tried by the court, where appellant sought to review the sufficiency of the evidence to sustain the findings, this court said:

"That under the rule prescribed by the statute and followed by this court in numerous decisions, the sufficiency of the evidence to sustain the decision in this action could not be reviewed, if the statement of the case did not contain proper specifications of the particulars wherein such evidence was alleged to be insufficient. ... Only in the last paragraph is there any specification of any particulars in which the evidence is alleged to be insufficient to sustain the findings of fact made by the trial court, and, as was said in our former decision, the limitation issue was immaterial," etc.

In the case of McPherson v. Swift, 27 S.D. 296, 130 N.W. 768, the sufficiency of the evidence to sustain the findings of the trial court was sought to be reviewed, and this court said:

"Though the assignments of error occupy 49 closely printed pages, they nowhere specify any particular wherein the evidence is insufficient to justify this finding. Nor does the appellant's brief, consisting of 166 pages, anywhere point out any particular in which the evidence is insufficient to justify the same. So this finding must be sustained."

In McNish v. Wolven, 22 S.D. 621, 119 N.W. 999, Justice Corson says:

"There being in this case no specification of the particulars in which the evidence is insufficient to justify the findings, and no specification of the errors of law that will be relied on, it was the duty of the trial court to...