Marmon v. Hodny

• Decision Date: 10 January 1980
• Docket Number: No. 9705,9705
• Citation: 287 N.W.2d 470
• Parties: Alice MARMON, Ida Davidson and Gerald Schmidt, as Personal Representative of the Estate of Ernest Schmidt, Petitioners, v. William F. HODNY, Judge of the District Court for the Southwestern JudicialDistrict, acting pursuant to appointment by Order of the Supreme Court, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 470

287 N.W.2d 470

Alice MARMON, Ida Davidson and Gerald Schmidt, as Personal Representative of the Estate of Ernest Schmidt, Petitioners, v. William F. HODNY, Judge of the District Court for the Southwestern JudicialDistrict, acting pursuant to appointment by Order of the Supreme Court, Respondent.

Civ. No. 9705.

Supreme Court of North Dakota.

Jan. 10, 1980.

Mackoff, Kellogg, Kirby & Kloster, Dickinson, for petitioners; argued by Ward M. Kirby, Dickinson.

Greenwood, Greenwood & Greenwood, Dickinson, for respondent; argued by Dann E. Greenwood, Dickinson.

SAND, Justice.

Alice Marmon and other petitioners requested this court to exercise its original jurisdiction and issue a supervisory writ directing the Judge of the District Court for Slope County to vacate its order compelling petitioners to answer certain interrogatories.

The proponents of the last will and testament of August Schmidt submitted it for probate in Slope County Court. The petitioners objected to the probate of the will on the grounds that the decedent lacked testamentary capacity and intent at the time of the execution of the will and that the decedent had been subjected to fraud and undue influence and duress prior to and at the time of the execution of the will on 14 October 1970. The county court after a hearing denied probate of the will, whereupon the proponents of the will appealed to the district court ¹ in which a trial anew is now pending.

The proponents of the will after the appeal was perfected submitted interrogatories to the petitioners which were answered, and as pertinent to this appeal are as follows:

"1. State the name, address and telephone number of each witness you intend to call at trial.

"ANSWER TO INTERROGATORY NO. 1:

Appellees are not certain at this stage of the names of witnesses who will be called by the Appellees at time of trial, but the following is a listing of potential witnesses having knowledge of relevant facts who are currently known to the Appellees:

(Names and addresses of witnesses were listed.)

"2. With regard to each person named in your answer to the foregoing Interrogatory, state:

a. Whether such person was in the actual physical presence of the decedent, August Schmidt, on the 14th day of October, 1970, and if so, explain;

b. The date and location and description of the substance of any and all meetings, visits and discussions by such person with the decedent, August Schmidt, in the five (5) years next preceding October 14, 1970;

c. The date, location and description of any and all meetings, visits or discussions by such person with the decedent, August Schmidt, between October 14, 1970 and July 29, 1976;

d. The substance of any testimony which such person intends to make at trial.

"ANSWER TO INTERROGATORY NO. 2:

Persons who testified or gave statements at the time of trial in County Court are expected to give testimony on questioning similar to the testimony given at trial with reference to each of the matters raised by the Interrogatory. With respect to relevant testimony by other persons who may have knowledge of the facts, information concerning such testimony has been acquired by my attorney in the process of preparing for trial. To my knowledge he has not, at this time, obtained any written statements concerning such proposed testimony but may do so prior to trial, in which event, a claim of work product privilege of such information obtained by counsel in preparing for trial is made.

"3. With regard to the allegations in your AMENDED AND SUPPLEMENTAL PETITION AND OBJECTIONS TO PROBATE OF PURPORTED WILL AND FOR ADJUDICATION OF INTESTACY that August Schmidt 'lacked testamentary capacity to make and execute a valid Last Will and Testament on October 14, 1970 . . .' state in detail:

a. In what sense, or, if you rely on more than one basis in what senses the decedent, August Schmidt, was incapable of executing a Last Will and Testament on October 14, 1970;

b. Each and every fact, matter and thing upon which you rely to support such allegation;

c. The name, address and phone number of each and every witness you intend to call at trial to prove such allegation d. The name, address and phone number of any additional persons known to you who has, or whom you believe has, knowledge of such facts, matters or things.

"ANSWER TO INTERROGATORY NO. 3:

The allegations contained in the AMENDED AND SUPPLEMENTAL PETITION AND OBJECTIONS TO PROBATE AND FOR ADJUDICATION OF INTESTACY were prepared by counsel for the undersigned. The investigation of facts conducted by my counsel, as well as the results of such investigation, are deemed to be privileged and the result of preparation for trial. (See Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947)). With respect to prospective testimony of witnesses and persons giving statement which were admitted into evidence at the time of trial of the above matter in the County Court at Amidon, North Dakota on September 19, 1978.

"4. With regard to your allegation in your AMENDED AND SUPPLEMENTAL PETITION AND OBJECTIONS TO PROBATE OF PURPORTED WILL AND FOR ADJUDICATION OF INTESTACY, '. . . execution of said alleged will was obtained through fraud and undue influence, . . .' state in detail;

a. A description of the undue influence practiced upon August Schmidt;

b. Each date upon which such undue influence was practiced;

c. The location at which such undue influence was practiced;

d. The name and address of each person whom you allege practiced such undue influence;

e. The name, or other means of identification, and address of each person present at the time and placed such undue influence was practiced;

f. A description of the fraud practiced upon August Schmidt;

g. Each date upon which such fraud was practiced;

h. The location at which such fraud was practiced;

i. The name and address of each person whom you allege practiced such fraud;

j. The name or other means of identification, and address of each person present at the time and placed such fraud was practiced;

k. The name and address of each person you intend to call at trial to prove such allegations of fraud and undue influence.

"ANSWER TO INTERROGATORY NO. 4:

See Answer to Interrogatory No. 3.

"5. With regard to your allegation in your AMENDED AND SUPPLEMENTAL PETITION AND OBJECTIONS TO PROBATE OF PURPORTED WILL AND FOR ADJUDICATION OF INTESTACY, '. . . that at the time of execution of said alleged will, the said August Schmidt lacked testamentary intent . . .' state in detail;

a. In what sense, or if you rely on more than one basis, in what senses, the decedent, August Schmidt, lacked testamentary intent;

b. Each and every fact, matter and thing upon which you rely to support such allegation;

c. The name and address of each witness you intend to call at trial to prove such allegation;

d. The name and address of any additional persons known to you who has, or whom you believe has, knowledge of such facts, matters and things.

"ANSWER TO INTERROGATORY NO. 5:

See Answer to Interrogatory No. 3.

"6. With regard to your allegations in your AMENDED AND SUPPLEMENTAL PETITION AND OBJECTIONS TO PROBATE OF PURPORTED WILL AND FOR ADJUDICATION OF INTESTACY, '. . . that said execution was procured through duress . . .' state in detail;

a. A description of the duress practiced upon August Schmidt;

b. Each date upon which such duress was practiced;

c. The location at which such duress was practiced;

d. The name and address of each person whom you allege practiced such duress;

e. The name, or other means of identification, and address of each person present at the time of and place such duress was practiced;

f. The name and address of each witness you intend to call at trial to prove the allegations of duress.

"ANSWER TO INTERROGATORY NO. 6:

See Answer to Interrogatory No. 3."

The proponents of the will then moved the court as permitted by Rule 37(a)(2) of the North Dakota Rules of Civil Procedure, for an order compelling the respondents to answer more fully and completely and with specificity interrogatories numbered 3, 4, 5, and 6.

After a hearing, in which no evidence ² was introduced but only arguments of counsel were heard, the court issued an order compelling the petitioners herein to forthwith answer fully and completely and with specificity the questions in interrogatories 3(b) and (c), 4(a) through (k), 5(b) and (c), and 6(a) through (f).

The court also ordered that interrogatories No. 3(a) and 5(a) constituted "work product" of petitioners' attorney, and were therefore not required to be answered. The court further ordered that interrogatories No. 3(d) and 5(d) were repetitive and need not be answered.

The petitioners then applied to this court as stated above for a supervisory writ directing the district court to vacate its order or in the alternative suspend its order and require that a showing be made of good cause for compelling the petitioners to answer the interrogatories referred to above.

In Burlington Northern v. North Dakota District Court, 264 N.W.2d 453 (N.D.1978), we observed that our Court on numerous occasions stated that its power to issue original remedial writs, even upon a proper showing, is discretionary and that its power cannot be invoked as a matter of right but will be employed to prevent possible injustice and that from this it necessarily follows that the court itself, on a case-by-case basis, will determine whether or not it should exercise its original jurisdiction. State ex rel. Vogel v. Garaas, 261 N.W.2d 914 (N.D.1978); State ex rel. Foughty v. Friederich, 108 N.W.2d 681 (N.D.1961); State ex rel. Lyons v. Guy, 107 N.W.2d 211 (N.D.1961).

This Court in Ingalls v. Bakken, 167 N.W.2d 516, 518 (N.D.1969), said:

"Unless the action of the trial court, which the Supreme Court is asked to supervise, is such that it will result in grave or serious prejudice to the applicant, and for which the applicant has no adequate remedy,...