Maher v. Smith (In re Smith's Estate)

• Decision Date: 06 October 1939
• Docket Number: No. 6593.,6593.
• Citation: 69 N.D. 437,288 N.W. 235
• Parties: In re SMITH'S ESTATE. MAHER v. SMITH et al.
• Court: North Dakota Supreme Court

69 N.D. 437

288 N.W. 235

In re SMITH'S ESTATE.

MAHER

v.SMITH et al.

No. 6593.

Supreme Court of North Dakota.

Oct. 6, 1939.

Syllabus by the Court.

1. Trial courts are clothed with a wide discretion in the matter of granting and denying motions for continuance, and it is only where there is an abuse of that discretion that an order denying such a motion will be disturbed on appeal.

2. In passing upon a motion for continuance, the trial court must not only pass upon the grounds urged in support of the motion but also on the question as to whether the moving party has acted with diligence and in good faith, and the court's determination as to these matters is presumed to be correct.

3. The record in the instant case is examined and it is held, for reasons stated in the opinion, that there was no abuse of discretion on the part of the trial court in denying appellant's motion for a continuance.

Appeal from District Court, Ramsey County; George M. McKenna, Judge.

Proceeding in the matter of the estate of Mary Maher Smith, deceased, wherein Clinton Smith petitioned the county court to admit the will of Mary Maher Smith, deceased, to probate, and wherein J. Wallace Maher contested the will and filed a cross-petition praying leave to probate an alleged olographic will, and wherein Clinton Smith and others filed an answer to the cross-petition. The county clerk entered a decree dismissing the contest and cross-petition, and admitting the will to probate, which Clinton Smith had petitioned to have probated. From a judgment of the district court in favor of Clinton Smith and others, and from an order denying his motion for a new trial, J. Wallace Maher appeals.

Judgment and order affirmed.

Francis Murphy, of Fargo, for appellant.

Traynor & Traynor and S. W. Thompson, all of Devils Lake, for respondents.

NUESSLE, Chief Justice.

This is a will contest. The facts pertinent on this appeal may be stated as follows:

Mary Maher Smith, whose will is the subject of the controversy, died May 11, 1937. On May 18, 1937, her husband, the respondent Clinton Smith, petitioned the County Court of Ramsey County to admit her will, dated January 9, 1937, to probate. On June 2, 1937, the appellant, J. Wallace Maher, Mrs. Smith's brother, contested the will on the ground that the same was not executed in the manner required by law and that decedent was incompetent to execute a will and executed the same under duress, menace, fraud and undue influence. Appellant also filed a cross-petition, praying leave to probate an alleged olographic will, dated September 27, 1936. Respondents answered the cross-petition, denied the execution of the latter will and alleged the same was obtained through duress, menace, fraud and undue influence. Trial was had in the County Court on all the issues thus made. Voluminous testimony was taken on behalf of both sides. On July 29, 1937, the County Court entered a decree dismissing appellant's contest and cross-petition and admitting the will of January 9 to probate. Thereupon appellant appealed to the District Court of Ramsey County.

The regular November, 1937, term of the District Court for Ramsey County, the Honorable W. J. Kneeshaw, presiding, was set to convene on November 8, 1937. The appeal from the County Court was on the calendar for trial at this term. On October 30, appellant gave notice of the taking of depositions of numerous witnesses in Minneapolis and of Dr. Pearson in Miami, Florida. Thereupon respondents applied to the Honorable C. W. Buttz, one of the Judges of the District Court for Ramsey County, for an order to suppress the taking of these depositions because the notice for the taking thereof was not timely, in that the said depositions, considering the places where the same were to be taken, could not reasonably be taken and returned for use in the cause when reached in its regular order on the November calendar. Judge Buttz heard and considered the matter both sides appearing, and held that the objections of respondents were good as to the taking of the deposition in Florida, but that the depositions noticed to be taken in Minneapolis might reasonably be taken at the time appointed and an order was entered accordingly. Thereafter on November 6, appellant filed an affidavit of prejudice against Judge Kneeshaw, and the Honorable George M. McKenna, one of the Judges of the Third Judicial District, was designated to preside in his place and stead. Judge McKenna was unable to attend at the time the case was regularly reached and it was continued until November 17, and then later until November 22, and the jury were excused until that time. In the meantime, and on November 4, the depositions noticed to be taken in Minneapolis were taken, but the same were not at once returned because of appellant's failure to pay the notary fees, and respondents in order to have the depositions in time for the trial on November 22, were compelled to and did pay the charges therefor.

On November 10, appellant gave notice of a motion for a continuance over the term on account of the absence of Dr. Pearson, the witness in Miami. This motion was made returnable on November 22. Counsel for respondents at once upon being served with notice thereof, informed appellant that the motion would be resisted but offered to cooperate in the taking of Dr. Pearson's deposition so that the same might be taken and returned in time for the trial on November 22. Appellant, however, made no move to enter into an arrangement whereby the deposition might be thus taken. On November 18, appellant went to Minneapolis and entered a rest hospital. Because of other business, Judge McKenna continued the case until November 26, 1937. On that day it was called and appellant's counsel then moved for a continuance over the term on the ground that appellant was ill and unable to attend the trial. The motion to continue on account of the absence of the witness Dr. Pearson was abandoned. The motion for continuance was presented on the showing thus made. The court denied the motion to continue over the term but granted a continuance to December 15, 1937, and the jury were again excused. Respondents then moved the court for an order requiring appellant, who was in a hospital in Minneapolis, to submit to an examination by physicians to be chosen by respondents. This motion was granted and an examination was made of appellant on December 10. On December 15, the date to which the case had been theretofore continued, the matter was again considered by the court, appellant asking for a continuance, respondents opposing. The affidavits of the physicians for appellant and of the examining doctors designated by respondents, were presented to the court by counsel in behalf of their respective contentions. After argument of counsel and consideration of the showings made, the court denied the motion. The case was then set down for trial on January 18, 1938 and the jury were again excused until that date.

On January 18, appellant's counsel made a further motion for a continuance over the term on the ground of the illness of appellant, and presented affidavits in support of his motion, setting forth that appellant was a necessary and material witness and his attendance was required at the trial of the case, not only as a witness but also to advise and counsel with his attorney, and that he was unable to be present on account of illness; that he was then absent in the West Indies on a sea voyage, necessary and taken for the benefit of his health. This motion was resisted and a counter showing was made. At this time, counsel for respondents further offered to permit the testimony of appellant taken at the trial of the contest in County Court, and consisting of some one hundred typewritten pages, to be used on the trial in lieu of the personal appearance of...