Ortt v. Leonhardt

• Decision Date: 13 May 1902
• Citation: 68 S.W. 577
• Parties: ORTT v. LEONHARDT et al.
• Court: Missouri Court of Appeals

68 S.W. 577

ORTT v. LEONHARDT et al.

Court of Appeals at St. Louis, Missouri.

May 13, 1902.

NEW TRIAL — MEMORANDUM OF JUDGE — REVIEW — COURT OF APPEALS — JURISDICTION — PRESUMPTIONS — DIMINUTION OF RECORDS.

1. Where a court, on sustaining a motion for a new trial, assigns no ground, it is held to be a specification of all the reasons assigned in the motion.

2. A memorandum of a circuit judge, filed on sustaining a motion for a new trial, and not made part of the record except by a bill of exceptions, where it does not appear as part of the court's order sustaining the motion, cannot be considered on appeal as a specification of reasons, under section 801, Rev. St. 1899.

3. Where it appears that the trial court has granted a new trial upon discretionary grounds, without any abuse of discretion, its order will not be reversed.

4. In a proceeding to establish a will mentioning real and personal property, and to set aside a later will to the same effect, this court takes jurisdiction where the cause was certified by the supreme court to this court for decision.

5. It is the province of the supreme court to finally determine the limits of its own jurisdiction, and thereby to mark the boundary of the jurisdiction of courts of appeals.

6. It is always to be presumed that the action of a trial court is free of error, in the absence of a contrary showing.

7. Under rule 5 of the St. Louis court of appeals (89 Mo. App. vi, 67 S. W. vii), similar to rule 4 of the supreme court (163 Mo. 1, 16 S. W. v), no suggestion of diminution of record can be accepted by the court after the record has been made up on appeal unless by consent of parties.

(Syllabus by the Judge.)

Appeal from St. Louis circuit court; S. P. Spencer, Judge.

Action by Rosa Ortt against Christian Leonhardt and others. There was a judgment for plaintiff, and on motion of defendant a new trial was granted. From the order granting a new trial plaintiff appeals to the supreme court, which certified the case to the court of appeals for decision. Affirmed.

L. Frank Ottofy, for appellant. Rassieur & Buder, for respondents.

BARCLAY, J.

This is a statutory proceeding designed to establish as a will a paper alleged to have been executed as such by Barbara Rosebrock, deceased, June 5, 1900. The petition shows that another document, dated May 15, 1900, had been admitted to probate in the city of St. Louis as the last will of said deceased; and it avers that said document is invalid, and that the one propounded by plaintiff is the veritable will of said testatrix. The defendants in the present action are the beneficiaries under the paper of May 15, 1900. The document propounded by the plaintiff, as well as the other document admitted to probate in the city of St. Louis, both undertake to dispose of all the property of said testatrix, including real as well as personal property of hers. It is not necessary to recite the particulars of the petition. The substance of it is that plaintiff contests the validity of the document of May 15, 1900, on the ground of undue influence over the testatrix, alleged to have been exerted by the principal beneficiary; and it also alleges that the later document, of June 5, 1900, propounded by the plaintiff, was duly executed and published in conformity with law, while the testatrix was of sound mind and memory, and that the later document was in fact the last will and testament of said deceased, and should not have been rejected by the court when offered for probate. The answer denies all the material facts of the petition; and the reply traverses the allegations of new matter in the answer. The case was tried before Judge Selden P. Spencer, with the aid of a jury.

It will not be essential to review at length the particulars of the testimony submitted by the contending parties. Suffice it to say that at the close of the whole case the court gave an instruction to the jury declaring the rules of law which seemed applicable, upon consideration of which the jury returned a verdict that the document dated June 5, 1900, propounded by plaintiff, was the last will and testament of said deceased. Within four days after the verdict defendants filed their motion for a new trial on the following grounds: "(1) Because said verdict and judgment are against the evidence; (2) because said verdict and judgment are against the law; (3) because said verdict and judgment are against the weight of the evidence; (4) because the court, against the objection of said defendants, erred in excluding proper, competent, and legal evidence offered on behalf of the said defendants; (5) because the court erred in admitting improper, incompetent, illegal, and irrelevant evidence offered by the plaintiff against the objections of these defendants; (6) because the court erred in giving improper and illegal instructions of its own motion, against the objections of the defendants; (7) because the court erred in refusing to give proper and legal instructions offered by said defendants; (8) because the verdict and judgment under the law and the evidence, and under the weight of the evidence, should have been that said paper writing was not the last will of said deceased." The motion for new trial, having been duly considered, was sustained by the court. The record entry of that result was as follows: "It is ordered by the court that the motion for new trial be sustained." At the time the foregoing order was made the court filed the following memorandum, which was afterwards made a part of the record for review by bill of exceptions, to wit: "Ortt v. Leonhardt, No. 17,789 — A. Memo. of the Court. Barbara Rosebrock died in June, 1900, having left a paper dated May 15, 1900, which was duly admitted to probate, and after having left another paper dated June 5,...