Lange v. Dammier

• Decision Date: 04 June 1889
• Citation: 119 Ind. 567,21 N.E. 749
• Parties: Lange et al. v. Dammier et al.
• Court: Indiana Supreme Court

119 Ind. 567

21 N.E. 749

Lange et al.

v.Dammier et al.

Supreme Court of Indiana.

June 4, 1889.

Appeal from circuit court, Allen county; E. O'Rourke, Judge.

Action by William Lange and others against Hannah Dammier and others, to set aside a conveyance made by, and to contest the will of, William Lange, deceased. The parties were the heirs of said decedent, and he had conveyed and devised property to defendant Hannah Dammier. Verdict for plaintiffs, and judgment arrested. Plaintiffs appeal. Rev. St. Ind. 1881, § 2596, provides that any person may contest the validity of a will within a fixed time by filing in the proper circuit court his verified allegation in writing, setting forth testator's insanity, or that the will was not duly executed, or other ground of objection. Section 2597 provides that before any proceedings are had in such case the contestant shall give bond for costs.

S. M. Hench, I. Stratton, J. Q. Stratton, and T. W. Wilson, for appellants. W. G. Colerick and Colerick & Oppenheim, for appellees.

Berkshire, J.

This is an action between the children of William Lange, Sr., who died testate in said 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,-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. Stiman 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; Railroad 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, except 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. 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; Buchanan v. Railway Co., 71 Ind. 265;Turner v. Cook, 36 Ind. 129;Hagar v. Mounts, 3 Blackf. 57, 261;McCormick 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. Rev. St. 1881, § 2596; Kenworthy v. Williams, 5 Ind. 375;Reed v. Watson, 27 Ind. 443;Willett v....