Muir v. Miller

• Citation: 72 Iowa 585,34 N.W. 429
• Parties: MUIR, ADM'R, ETC., v. MILLER.
• Decision Date: 13 October 1887
• Court: Iowa Supreme Court

72 Iowa 585

34 N.W. 429

MUIR, ADM'R, ETC.,

v.MILLER.

Supreme Court of Iowa.

October 13, 1887.

Appeal from circuit court, Van Buren county.

Action at law to recover for money and securities wrongfully obtained by defendant from plaintiff's intestate during his life-time, through persuasion and undue influence, and by taking advantage of his incapacity. There was a judgment upon a verdict for plaintiff. Defendant appeals.Sloan, Work & Brown and Craig, McCrary & Craig, for appellant.

Wherry & Walker and D. C. Beaman, for appellee.

BECK, J.

1. Plaintiff alleges in his petition that he is the administrator of Samuel J. Miller, deceased, and states his cause of action against defendant in the following language: “That at the time hereinafter stated, and for a long time prior thereto, said intestate was enfeebled in body and mind, and entirely incapacitated to transact any business of importance, especially that of deeding or giving away his property; that on or about the tenth day of October, 1884, the said defendant, taking advantage of the incapacity of said intestate, and by persuasion and undue influence, wrongfully obtained from him a large amount of money, promissory notes, mortgages, accounts, and securities, of the aggregate value of sixty-four hundred and thirty-nine dollars and fifty cents ($6,439.50) at the time they were so obtained, a more particular description of which the plaintiff is unable to ascertain or give.” The petition asks to recover the possession of the property described in the petition, or, if it cannot be found, its value. The answer denies the allegations of the petition, and alleges that the defendant holds the absolute title of the property, which was transferred and delivered to him by the intestate for good and sufficient consideration.

2. A motion was made, and sustained in the court below, for the substitution of the record of the evidence, which was lost after the trial of the cause. This motion, and the substitution ordered by the court, were made after the appeal was taken to this court. From the action of the court below in sustaining the motion, and in making the substitution, defendant appeals. The plaintiff moves in this court to strike the evidence from the record, on the ground that it is not shown to be all the evidence, and the court below had no jurisdiction to entertain the motion, and make the substitution, for the reason that the cause had been appealed to this court, and upon another ground that need not be stated. As we reach a conclusion reversing the judgment of the court below for errror in instructions given to the jury, the questions involved in the motion to strike need not be considered, for the reason that they cannot again arise upon a new trial in the court below, when the case will be again tried upon original evidence.

3. And the questions involved in the order of substitution, and proceedings upon the motion therefor, need not be considered upon plaintiff's appeal for the same reason upon which we decline to pass upon the motion to strike.

It is not necessary to determine defendant's appeal in order to give him costs, for the reason that the facts necessary to decide the questions raised upon his appeal sufficiently appear in appellant's abstract. Plaintiff filed an amended abstract, which we do not understand was intended to present matter necessary for the determination of his appeal, which was omitted in defendant's abstract. Plaintiff suffers no prejudice from the waiver of the consideration of his appeal, for the reason that we shall not in the decision of the case consider the evidence, but regard it as though it were stricken out. And, in fact, we may regard the order and action of the court in the proceedings for the substitution as in effect reversed, pro forma.

4. The circuit court gave to the jury the following instruction: “12. If you find that Samuel J. Miller was of sound mind, and was a free agent, at the time he divided his notes and mortgages between his children and grandchildren, (if he did,) then that division must stand, although you may think said division was unreasonable or unfair to the grandchildren. This is on the theory that no undue influence has been shown or found. But in settling the preliminary questions as to whether or not undue influence was exercised, you may consider whether said division of property was reasonable or unreasonable, under the circumstances, and may also consider the prior declarations of the deceased as to what disposition he intended to make of his property, and the terms of the wills he may previously have...