Lange v. Dammier
| Decision Date | 04 June 1889 |
| Docket Number | 10,578 |
| Citation | 21 N.E. 749,119 Ind. 567 |
| Parties | Lange et al. v. Dammier et al |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled Sept. 19, 1889.
From the Allen Circuit Court.
Judgment reversed, with costs, and the court is instructed to sustain the appellants' motion for judgment on the verdict of the jury.
J. Q Stratton, I. Stratton, S. M. Hench and T. W. Wilson, for appellants.
W. G Colerick, H. Colerick and W. S. Oppenheim, for appellees.
This is an action between the children of William Lange, Sr., who died testate, in Allen county, on the 28th day of February, 1879. The controversy is over the title to certain real estate to which at one time the deceased held the title.
The amended complaint is in two paragraphs; both paragraphs describe the land; the first paragraph alleges that the appellee Hannah Dammier claims title by virtue of a deed executed to her by the decedent on the 4th day of January, 1877, and by his last will and testament executed on the 27th day of February, 1879; that the deed was executed without consideration; that the will was admitted to probate on the 6th day of March, 1879, and that when both instruments were executed the decedent was a person of unsound mind.
The second paragraph relates alone to the will, and alleges that the appellee Hannah Dammier claims title to the real estate by virtue of the will, which was probated on the 6th day of March, 1879, and that when the will was executed the testator was a person of unsound mind, and that the will was unduly executed.
The second paragraph of the complaint is verified, but the first paragraph is not. Some days after the amended complaint was filed, over the objection of the appellees, the appellants filed a bond as required by the statute in actions to contest wills. Upon the failure to file a bond in an action to contest a will the court should dismiss the proceedings; but as the filing of the bond is not a condition precedent to the right of the court to exercise jurisdiction, whenever a good and sufficient bond is tendered it should be accepted. This can work no prejudice to the contestees, because when the bond is filed the covenants of the obligors relate to the commencement of the action, as though the bond had been filed in the beginning.
The appellees answered by filing a general denial, and the issues joined were submitted to a jury, who returned a verdict for the appellants. The appellees filed a motion for a new trial, which the court overruled, and the proper exception was reserved in the record.
After the motion for a new trial was overruled, the appellants moved for judgment upon the verdict, and the appellees interposed a motion in arrest of judgment. The court overruled the former and sustained the latter motion, and the appellants excepted.
The appellants assign two errors: 1. Overruling their motion for judgment in their favor upon the verdict of the jury. 2. Sustaining the motion of the appellees in arrest of judgment.
The appellees assign a cross-error, viz., the overruling of their motion for a new trial.
All the questions presented by the cross-error depend upon the evidence. The evidence is not all in the record. The depositions of Henry Dammier and Hannah Dammier were introduced in evidence by the appellants, but these depositions are not in the record. Dr. G. B. Steman testified as a witness for the appellants. In his examination in chief he stated: "I am a physician; on the hypothetical question propounded to Dr. Gobrecht, which I heard, my opinion is that the facts stated would be evidence of a derangement of mind." The hypothetical question to which the answer was given is not in the record; nor are the facts embodied in the question made a part of the witness' testimony in narrative form. The hypothesis is necessarily a part of the witness' testimony; without it his opinion is unintelligible--a mere empty shell. We are compelled to disregard the cross-error.
The errors assigned by the appellants present the same questions and may be considered together.
It is a settled rule of practice in this State not to arrest judgment if the court has acquired jurisdiction over the person, and has jurisdiction of the subject-matter, if there is one good paragraph in the complaint. Baddeley v. Patterson, 78 Ind. 157; Jones v. Jones, 97 Ind. 188; Louisville, etc., R. W. Co. v. Fox, 101 Ind. 416.
There was no objection made because of the failure to verify the first paragraph of the complaint, except so far as the motion in arrest of judgment may be regarded as an objection. Had an objection been made at the proper time, and in the proper manner, it would have been the duty of the court to have stricken out all averments relating to the execution of the will and the mental condition of the testator, unless a verification of the paragraph had immediately followed the objection; but the appellees having joined issue, submitted to a trial, and a verdict having been returned, without any objection having been made, all right to object was waived. Sutherland v. Hankins, 56 Ind. 343, see pages 356, 357; Pudney v. Burkhart, 62 Ind. 179. Where the verification of a pleading is required, the proper practice is to move its rejection for want of verification, and if part, but not all, of the averments require that the pleading shall be verified, and it is not, then such part should be rejected on motion. Sutherland v. Hankins, supra; Decker v. Gilbert, 80 Ind. 107; Pudney v. Burkhart, supra; see Buchanan v. Logansport, etc., R. W. Co., 71 Ind. 265; Turner v. Cook, 36 Ind. 129; Hagar v. Mounts, 3 Blackf. 57; Hagar v. Mounts, 3 Blackf. 261; M'Cormick v. Maxwell, 4 Blackf. 168. The objection should be made before entering upon the trial, otherwise it comes too late.
Neither paragraph of the complaint is drawn with artistic accuracy, but the general allegations that the will was unduly executed and the testator of unsound mind make the paragraphs good under the statute for the contesting of wills. R. S. 1881, section 2596; Kenworthy v. Williams, 5 Ind. 375; Reed v. Watson, 27 Ind. 443; Willett v. Porter, 42 Ind. 250; Etter v. Armstrong, 46 Ind. 197.
By the first paragraph the validity of the conveyance, as well as the will, is attacked. One of the allegations against the validity of the deed is, that the testator was a person of unsound mind when it was signed and delivered. This allegation makes the complaint good as to the deed, unless it is necessary to allege and prove a disaffirmance before the institution of the action. The gist of the action is mental incapacity in the grantor when the deed was executed. As it is alleged that the conveyance was without consideration, the appellants were required to do nothing to place the appellees in statu quo.
It has been held by this and other courts that some action amounting to a disaffirmance, ought to be taken before a suit will lie to recover back real estate conveyed by a person of unsound mind, who was not at the time under guardianship, and that as against a demurrer the pleading is bad unless it avers a disaffirmance. But the holding is, that a simple notice, or the...
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