Mulhern v. Mahs

• Decision Date: 28 January 1930
• Docket Number: 1583
• Parties: MULHERN, ET AL. v. MAHS [*]
• Court: Wyoming Supreme Court

284 P. 123

41 Wyo. 214

MULHERN, ET AL. v. MAHS ^[*]

No. 1583

Supreme Court of Wyoming

January 28, 1930

ERROR to District Court, Albany County; CYRUS O. BROWN, Judge.

Action by Herman Mahs against Millie Mulhern and others. Judgment for plaintiff, and defendants bring error.

Affirmed.

For the plaintiff in error there was a brief by F. E. Anderson of Laramie, Wyoming.

The main point involved is whether the judgment is supported by sufficient evidence; we are familiar with the rule that a judgment rendered on conflicting evidence will not be disturbed if there be evidence to support it. Phelan v Company, 26 Wyo. 495; Sims v. Company, 38 Wyo 165. The record shows that the court decided the case on the ground that Mahs had made a testamentary disposition of his property. We are setting forth a synopsis of the evidence bearing upon this point. The proof did not support the allegations of the petition as to undue influence and we do not believe that it can be fairly said that the judgment is sufficiently supported by substantial evidence.

For the defendant in error there was a brief by Cassius M. Eby of Laramie, Wyoming.

Defendant in error, plaintiff below brought action to cancel conveyances alleged to have been made by him under undue influence and under the belief that he was executing a will. There was a judgment in favor of plaintiff and defendants prosecute error on the ground that the finding and judgment is not sustained by sufficient evidence. Plaintiff upon his recovery from illness requested a re-conveyance to him which was refused; plaintiff was entitled to this without demand or notice of non-performance. Royal v. Co., (Ind.) 19 N.E. 202; Ricketts v. R. R. Co. (Ky.) 34 Am. St. Rep. 177. It was established by the evidence that plaintiff was influenced by his children and son-in-law to make the deeds instead of a will. He was an old man; had been a widower for years, and then remarried. The conveyances cut off his entire income, and he was unable to earn wages. The finding and judgment are amply supported, and should be sustained.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

After a trial to the court, this cause was brought here on proceedings in error, instituted by plaintiffs in error--defendants below--to review a judgment of the District Court of Albany County, based on a general finding against them.

The only question argued in the briefs of the parties is whether that finding of the court is supported by evidence in accordance with the familiar rule which counsel recognize, namely: Where there is substantial evidence to support the finding of the trial court, the evidence in the case being in conflict, this court will not interfere.

Before undertaking an examination of this matter, we are obliged to call attention to the state of the record before us. In addition to the transcript of journal entries properly certified by the Clerk of the District Court of Albany County, there are two volumes of papers, the first of which, labelled "TRANSCRIPT OF ORIGINAL PROCEEDINGS HAD IN THE DISTRICT COURT, OF THE SECOND JUDICIAL DISTRICT, OF THE STATE OF WYOMING, COUNTY OF ALBANY," contains the original papers in the case embracing principally the pleadings, the summons, a paper signed by the trial judge and designated "Decree," from which the journal entry of the judgment appears to have been made, a motion for a new trial on behalf of the defendants, and a form of order overruling that motion, also signed by the trial judge. The final certificate attached to these papers is as follows:

"The foregoing bill of exceptions contained all of the evidence in the case, all the motions and matters in all records, all the exceptions and objections to the rulings of the court, all the instructions and offers of evidence, the motion for a new trial and the rulings and orders thereon of the exceptions of the plaintiff to the order denied and overruling the motion for a new trial was presented to this court for allowance on the 11th day of January, A. D. 1929 within the time allowed by law, and the extension thereon allowed by order of the court. And now being found to be correct and true the same is hereby allowed, signed, sealed and made a part of the record in this case, but not to be spread at large on the journal of the court."

Notwithstanding the recital in the certificate concerning the evidence in the case, our examination discloses that no evidence of any kind whatsoever is set forth in the volume.

The second volume purports to contain a transcript of the evidence in the case. Attached to it are merely a certificate of the court reporter who took the testimony in shorthand and the certificate of the Clerk of the District Court of Albany County substantiating the official character of such reporter. There is no attached certificate of any sort on the part of the trial judge and none by the clerk, except as stated in the last preceding sentence.

In State ex rel. Dimond Brothers v. Craig, Judge, 15 Wyo. 439, 89 P. 584, 586, this court, speaking of the section of our statute relating to exceptions, said:

"Section 3741, Revised Statutes 1899 (Sec. 5865, Comp. Stat. of Wyo. 1920), is as follows: 'No particular form of exception is required, and the exception must be stated, with the facts, and no more, and the whole as briefly as possible.' The requirement of the last section is not satisfied with anything less than all the evidence bearing upon and which is necessary to explain the exception or error complained of."

Referring to the bill of exceptions in Seng. v. State, 20 Wyo. 222, 122 P. 631, 632, the following language was used:

"The bill, as signed by the trial judge, consists of nine pages under separate cover bearing the filing mark of the Clerk of the District Court, and attached to it, but not referred to in the bill or in any way identified or authenticated by the court or judge, is what purports to be a transcript of the shorthand notes...