Murphey v. McCarthy

• Decision Date: 07 April 1899
• Parties: MURPHEY v. MCCARTHY.
• Court: Iowa Supreme Court

108 Iowa 38

78 N.W. 819

MURPHEY

v.MCCARTHY.

Supreme Court of Iowa.

April 7, 1899.

Appeal from district court, Dubuque county; J. L. Husted, Judge.

Proceeding in probate for the allowance of a claim against the estate of the decedent. There was a trial by the court without a jury, and an order allowing the claim. The defendant appeals. Reversed.Longueville, McCarthy & Kenline, for appellant.

Lyon & Lyon, for appellee.

ROBINSON, C. J.

The plaintiff seeks to recover of the estate of Margaret Powers, deceased, the sum of $484, for board and washing furnished the decedent during a period of 121 weeks, and the claim was allowed to the amount of $480.

1. Mrs. Newman testified as a witness, and was asked, in regard to what the decedent was furnished by the plaintiff, “what it would be worth a week,” and answered, “About $4.50, and very reasonable at that.” The defendant moved that the answer be stricken out on the ground that the witness had not shown herself competent to testify, but the motion was overruled. We think the ruling was correct. The objection, if well founded, should have been made before the question was answered, for the reason that the alleged failure to show the competency of the witness was as apparent before as after the question was answered. State v. Marshall, 105 Iowa, 38, 74 N. W. 763;Blackmore v. Fairbanks, Morse & Co., 79 Iowa, 282, 44 N. W. 548.

2. The wife of the plaintiff testified as a witness, and was asked if she knew what board for such a woman as the decedent, and taking care of her, feeding her, and doing her washing and mending, were worth. An objection to the question having been made, the court asked, “Do you know what board and the care of an old person was worth at that time in your neighborhood?” and answered, “Not less than $4, if not more, for to take care of one that would be like her.” The defendant moved to strike out the answer as “incompetent, no proper foundation having been laid,” and the court said, “I want you to exclude her from your mind;” and the witness, having asked and received permission to answer again, said that they were worth $4 per week. The defendant moved that the answer be stricken out because “incompetent, immaterial, no proper foundation having been laid, and not based upon any testimony in the case.” The court did not rule upon the motion to strike the answer to its first question, and objections were not made to the last question, but to the answers after they were given. No objection to the answers on the ground that they were not responsive was made, and the only ground of the last motion to strike, which would have been well taken in any event, was that the competency of the witness to testify as to the value of the board had not been shown; but that objection should have been made before the answers assailed were given.

3. Mrs. Mulqueeney testified in regard to the value of what was furnished the decedent by the plaintiff, and gave several answers which were not responsive to questions asked, but motions by the defendant to strike such answers were disregarded by the court. She was finally asked what it was worth to keep the decedent, and answered: “I would not keep her for less than $5 a week.” A motion to strike the answer because not responsive, irrelevant, and immaterial was overruled. It was clearly well founded, and should have been sustained.

4. The will of the decedent was admitted in evidence, notwithstanding an objection of the defendant that it was immaterial. That it was material to establish the claim of the plaintiff may well be doubted, but it does not appear that there was any ruling upon the objection; hence it must be regarded as waived. Langhammer v. City of Manchester, 99 Iowa, 295, 68 N. W. 688;Nagle v. Fulmer, 98 Iowa, 585, 67 N. W. 369;Payne v. Dicus, 88 Iowa, 423, 55 N. W. 483.

5. The appellant insists that the plaintiff has not shown that the decedent was indebted to him. It was formerly the rule in this state that the burden was on the claimant of any estate...