Phillips v. Gammon

• Citation: 124 N.E. 699,188 Ind. 497
• Decision Date: 29 October 1919
• Docket Number: No. 23310.,23310.
• Parties: PHILLIPS v. GAMMON et al.
• Court: Indiana Supreme Court

188 Ind. 497

124 N.E. 699

PHILLIPS

v.GAMMON et al.

No. 23310.

Supreme Court of Indiana.

Oct. 29, 1919.

Appeal from Circuit Court, Warrick County; Ralph E. Roberts, Judge.

Action by Shirley Gammon and others against Willard Phillips. Judgment for plaintiffs, and defendant appeals. Reversed, with instructions.Roscoe Kiper and Henry F. Fulling, both of Boonville, for appellant.

C. J. Lindsey, S. B. Hatfield, and W. S. Hatfield, all of Boonville, and John R. Brill, F. H. Hatfield, and John W. Brady, all of Evansville, for appellees.

MYERS, J.

Appellees brought this action to contest and set aside the last will of Payton D. Gammon, on the ground that at the time the will was executed he was: (1) A person of unsound mind; (2) that he “was under undue influence”; and (3) that the pretended will was unduly executed. The complaint was in one paragraph, and a general denial thereto formed the issues submitted to a jury, resulting in a verdict and judgment setting the will aside on the ground of unsoundness of mind. The trial court granted Phillips as executor permission to prosecute this appeal. In this court he assigns and relies on alleged errors of the court below: (1) In overruling his motion to make the complaint more specific; and (2) in sustaining appellees' motion to reject and strike from the files his motion for a new trial.

[1][2] As to the first assignment of error it will be noticed that the first and third grounds for contest are stated in the language of the statute. The second cause is not expressly made a statutory ground for contest, but it is so authorized, and not infrequently relied on by contestors. The three statements here counted upon-“unsoundness of mind,” “undue execution,” and “undue influence”-all have a well-known and well-recognized legal meaning when used, as in this case, to state a cause of action. However, under the allegations of unsoundness of mind and undue execution, any evidence tending to show undue influence is admissible. Clearspring Tp. v. Blough, 173 Ind. 15, 24, 88 N. E. 511, 89 N. E. 369.

Furthermore, this court has ruled that a motion to make more specific is unavailing when the statement of the grounds of contest is in the language of the statute. McDonald v. McDonald, 142 Ind. 55, 64, 41 N. E. 336.

In the instant case the pleaded facts relied on by the complainants are well within the law affirmed by the case last cited. The motion was properly overruled.

[3] Passing to appellant's second assignment, the record shows that the jury returned its verdict on June 9, 1916. On June 22d, defendants, in writing, filed what they called a motion in arrest of judgment, which was thereupon overruled, and judgment on the verdict in favor of plaintiffs. On July 1st defendants filed their motion for a new trial. On October 16th, over defendants' objection and exception, the court sustained plaintiffs' motion to strike from the files and reject defendants' motion for a new trial. Of this ruling appellant complains. The correctness of this ruling depends upon the character of the motion, evidently treated by the trial court as a motion in arrest of judgment. It was so designated by the defendants, and the prayer thereof was that the judgment be arrested. In this court counsel for appellant insist that the motion in fact was a motion for a venire de novo, and should be so construed and treated. This insistence must be sustained.

[4] While a motion for a venire de novo and a motion in arrest of judgment must both be made before judgment, yet the province of each is entirely different. The former should precede the motion for a new trial, and is confined to uncertainty, ambiguity, or imperfections in the verdict or findings of the court, as the case may be, while the latter affirms the verdict, but challenges the pleadings upon which it rests to authorize it, and cuts off the right of the maker to subsequently file a motion for a new trial. Cincinnati, etc., R. Co. v. Washburn, 25 Ind. 259, 261;Boor, Adm'r v. Lowrey, 103 Ind. 468, 3 N. E. 151, 53 Am. St. Rep. 519;Shaw v. Bank, 60 Ind. 83, 94;Kelley v. Bell, 172 Ind. 590, 596, 88 N. E. 58;Bennett v. Simon, 152 Ind. 490, 491, 53 N. E. 649;Potter v. McCormack, 127 Ind. 439, 440, 26 N. E. 883;Smith v. State, 140 Ind. 343, 350, 39 N. E. 1060.

[5] It is not the name given to a pleading or motion or the prayer thereof that determines its character and effect. The name and prayer may be advisory, but neither will be allowed to control the remedy selected as shown by the facts in the pleading or motion....