Scott v. Hawk

• Decision Date: 16 May 1898
• Citation: 75 N.W. 368,105 Iowa 467
• Parties: JAMES SCOTT, Proponent, v. SARAH J. HAWK, JOHN H. SCOTT AND FREEMAN SCOTT, Contestants, Appellants
• Court: Iowa Supreme Court

75 N.W. 368

105 Iowa 467

JAMES SCOTT, Proponent, v. SARAH J. HAWK, JOHN H. SCOTT AND FREEMAN SCOTT, Contestants, Appellants

Supreme Court of Iowa, Des Moines

May 16, 1898

Appeal from Keokuk District Court.--HON. A. R. DEWEY, Judge.

TRIAL to jury, verdict and judgment for contestants. A petition for a new trial, filed by proponent, was granted, and contestants appeal--Affirmed.

AFFIRMED.

C. M Brown and D. D. Hill for appellants.

Hamilton & Donohue, Woodin & Son and C. H. Mackey for appellee.

OPINION

LADD, J.

A paper purporting to be the will of John Scott, deceased, left two-thirds of his estate to the proponent, a grandson, and one-third to his wife, who died before he did. Objections to its admission to probate were made by Sarah Hawk, a daughter and John H. and Freeman Scott, grandsons. At the trial, when the proponent had concluded the introduction of his evidence the court directed the jury to return a verdict for the contestant because the execution of the will had not been proven. The will appeared to be signed by Scott by making his mark, though this was not stated in the attestation of the subscribing witnesses. These were dead, and the genuineness of their signatures was shown, but not that of the mark of deceased. On the twenty-seventh day of March, 1896, the proponent filed a petition for a new trial, in which it is alleged that C. H. Mohland, of Burlington, Iowa when a resident of Sigourney, was a partner of D. W. Hamilton, and engaged in the practice of law; that the firm of Mohland & Hamilton had charge of notes and other papers of deceased, including an envelope containing this will; that at request of deceased he showed him the will, and deceased, after looking it over carefully, and examining the signatures, pronounced it to be his will; that proponent did not know said Mohland had such knowledge until after the trial; that he is a resident of Kansas, and did not know till after the beginning of the term that objections had been filed, when he came to Sigourney, and made diligent search and inquiry for information connected with the execution of the will, but was unable to obtain any of the nature of that set out. The contestants demurred to the petition because it showed on its face (1) that due diligence was not exercised, and (2) the evidence of Mohland to be incompetent and irrelevant. This demurrer was overruled.

I. Reasonable diligence must be alleged and proven in order to obtain a new trial on petition. Code, section 4092; Miller v. Albaugh, 24 Iowa 128; Stuckslager v McKee, 40 Iowa 212; Stineman v. Beath, 36 Iowa 73; Carson v. Cross, 14 Iowa 463; Darrance v. Preston, 18 Iowa 396; Cohol v. Allen, 37 Iowa 449; Woodman v. Dutton, 49 Iowa 398. Affidavits in support of a motion for a new trial on the ground of newly discovered evidence must state the facts constituting reasonable diligence. Carson v. Cross, supra; Darrance v. Preston, supra. In the latter case it is said of a general allegation of due diligence: "This averment would be held insufficient on motion for more specific statement, and possibly as bad on demurrer." In Cohal v. Allen, supra, the petition was adjudged insufficient on demurrer, and this language employed: "It fails to show facts constituting diligence in efforts to procure the evidence at the trial. The statements on this point are simply averments of inability to produce and efforts to obtain evidence generally, without sufficiently stating what was done, which is claimed to be proper diligence." From this it would seem the facts alleged were relied on, rather than the general allegation of reasonable diligence. If so, then the ruling is not at variance with that of Woodman v. Dutton, 49 Iowa 398. In that case a demurrer to the petition alleging that with reasonable diligence the evidence could not have been discovered, was...