Mueller v. Rebhan

• Decision Date: 30 November 1879
• Citation: 1879 WL 8672,94 Ill. 142
• Parties: SOLOMON MUELLERv.CATHARINE REBHAN.
• Court: Illinois Supreme Court

94 Ill. 142

1879 WL 8672 (Ill.)

SOLOMON MUELLER

v.CATHARINE REBHAN.

Supreme Court of Illinois.

November Term, 1879.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of St. Clair county; the Hon. WILLIAM H. SNYDER, Judge, presiding.

Mr. W. WINKELMAN, for the appellant.

Mr. JAMES M. DILL, and Mr. W. C. KUEFFNER, for the appellee.

This was a bill filed May 8, 1875, by Catharine Rebhan, the appellee, against Solomon Mueller and others, to set aside the will of George Christian Mueller, (executed on the 14th of March, 1870,) who died a few days after the execution of the will. The will was afterwards duly probated.

At the time of the death of the testator he left but four heirs, Solomon Mueller, George Mueller, Margaret Reinhardt and Catharine Rebhan. By the terms of the will $50 was given to each of the daughters, and the residue of his property, which was variously estimated from $40,000 to $120,000, was given to the sons, Solomon Mueller and George Mueller, and Solomon and George were appointed executors of the will. Afterwards, and before the filing of this bill, George Mueller (heir and executor as aforesaid) died, leaving a will by which he gave his brother Solomon all his property, real and personal.

The grounds upon which it was sought to set aside the will were two: 1. It was charged that George Christian Mueller, at the time of the making of the will, was mentally incapable, and that he was of weak intellect, not possessed of capacity sufficient to made a valid will. 2. That he was induced to make the will by undue influence exerted upon him by his sons, Solomon and George.

An issue was formed as to the validity of the will, that was submitted to a jury for trial at the January term, 1877, and resulted in a verdict that the will in question was not the will of the deceased. A motion for a new trial was made by the defendants and overruled by the court, and a final decree entered setting the will aside, and Solomon Mueller appeals to this court.

Mr. JUSTICE DICKEY delivered the opinion of the Court:

It appears from the record that some days before this case was called for trial at that term of the court, some of the jurors originally drawn and summoned, when called, not appearing, and the regular panel not being full, the court ordered the sheriff to summon a number of jurors sufficient to fill up the same. The persons so summoned were, by order of the court, put upon the regular panel for two weeks. Among the jurors so called by the sheriff and placed upon the panel by order of the court for two weeks, were the names of Ellis and Hess.

When this cause was called for trial four jurors were drawn from the regular panel thus organized, who were examined by the parties and accepted and sworn. Then four others were called and were accepted by the appellee, among whom was the juror Ellis. Upon examination by appellant Ellis testified that he had served in that court as a juror on the day previous. Appellant thereupon challenged him for cause, upon the ground that he had served upon a jury within a year in a court of record in that county. This challenge was overruled by the court, and the four jurors were sworn. Among the next four who were called was the juror Hess, who was interrogated by appellant, and it was found that he had served as a juror in a cause at that term of the court before the calling of this cause. Appellant thereupon challenged Hess as incompetent, upon the ground that he had served upon a jury within a year in a court of record in that county. This challenge was overruled.

It is insisted by appellant that the court erred in overruling his challenges to these jurors. The counsel for appellant takes the position, that inasmuch as Ellis and Hess were not drawn by the clerk of the circuit court from the box in the county clerk's office, but were summoned by the sheriff, “they were not on the regular panel,” and should have been treated as talesmen; and hence insists that his challenges ought to have been sustained, under the provision of section 14, chapter 78 of the Revised Statutes of 1874, which says, “It shall be sufficient cause of challenge of a petit juror, if he is not one of the regular panel, that he has served as a juror on the trial of a cause in any court of record in the county within one year previous to the time of his being called as a juror.”

This position, we think, is not well taken. It is, undoubtedly, true that the manner in which these men were placed upon the regular panel was not in accordance with the statute. This irregularity is not such as to render the organization of the regular panel void. By a challenge to the array the question of the regularity or proper organization of the panel might have been presented. No such challenge was made in this case. Appellant having entered upon the business of drawing a jury from the regular panel as organized, had thus waived his right to challenge the array, and waived any objection which he might have taken to the regularity of the organization of the panel. It was not competent for him, after having accepted four of that panel, to challenge the jurors in question, as though they had been called as talesmen. In Stone v. The People, 2 Scam. 326, it is laid down that objections to the mode of summoning the petit jury must be taken by challenge of the array, or by motion to quash the array, or the tales--if the objection goes only to the tales. In Gropp v. The People, 67 Ill. 160, the same doctrine is laid down, and reference is there made to 5 Bac. Abr. 345, title, Juries, E.: where it is said, neither party shall take a challenge to the polls which he might have had to the array.

We are referred to the cases of Bissell v. Ryan, 23 Ill. 566, and to Brooks v. Bruyn, 35 Id. 392, as holding a different doctrine. These cases were decided under the act of 1859. That act provided, “that hereafter it shall be sufficient cause of challenge to any juror called to be sworn, in any cause, that he has been sworn as a juror at any term of court held within a year prior to the time of such challenge.” It will be observed that the act in force at the time of the trial of the cause at bar differs from that of 1859, in limiting this cause of challenge to such jurors as are “not of the regular panel.” This limitation excludes the cases of Ellis and Hess from the rule laid down by this court in the cases in 23 Ill. and 35 Ill.

It is also insisted by appellant that the circuit court erred in permitting the husband of appellee to testify to matters transpiring, and declarations made, before the death of the testator. At common law, where the wife was incompetent to testify by reason of being a party, or by reason of being interested in the event of the suit, the husband was also held incompetent. The question presented in this case is, as to how far that rule has been modified by statute and whether the rule has not in fact been wholly abolished. By the act approved March 29, 1872, “in regard to evidence and depositions in civil cases,” which is re-enacted (with some modifications) and embodied in chap. 51, Rev. Stat. 1874, it was provided in section 1: “That no person shall be disqualified as a witness in a civil action, suit or proceeding, except as hereinafter stated, by reason of his or her interest in the event thereof, as a party or otherwise.” * * * * By section 2, it was provided: “No party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion or in his own behalf by virtue of the foregoing section 1, when any adverse party sues or defends * * * * as the executor, administrator, heir, legatee or devisee of any deceased person, * * * except in the following cases, namely, * * * a party or interested person may testify to facts occurring after the death of such deceased person.” * * * And by section 5, “No husband or wife shall, by virtue of section 1 of this act, be rendered competent to testify for or against each other as to any transaction or conversation occurring during the marriage, * * * except in cases where the wife would, if unmarried, be plaintiff or defendant, * * * and except in cases where the litigation shall be concerning the separate property of the wife, * * * and except, also, in actions upon policy of insurance of property, as far as it relates to the amount...