Seventh Day Adventist Ass'n of Colorado v. Underwood

• Decision Date: 20 July 1936
• Docket Number: 13674.
• Citation: 99 Colo. 139,60 P.2d 929
• Parties: SEVENTH DAY ADVENTIST ASS'N OF COLORADO et al. v. UNDERWOOD.
• Court: Colorado Supreme Court

60 P.2d 929

99 Colo. 139

SEVENTH DAY ADVENTIST ASS'N OF COLORADO et al. v. UNDERWOOD.

No. 13674.

Supreme Court of Colorado

July 20, 1936

Rehearing Denied Sept. 21, 1936.

In Department.

Error to District Court, Pueblo County; William B. Stewart, Judge.

Action by Hazel Boden Underwood against the Seventh Day Adventist Association of Colorado and others. To review a judgment for plaintiff, defendants bring error.

Affirmed.

Joseph J. Walsh. Donald F. Clifford, and Joseph J. Cella, Jr., all of Denver, for plaintiffs in error.

L. E Langdon and John T. Barbrick, both of Pueblo, for defendant in error.

HILLIARD, Justice.

In an action to recover real property, defendant in error prevailed Before a jury and had judgment against plaintiff in error the Seventh Day Adventist Association. The other plaintiffs in error were only nominal defendants at trial and are without interest here. It is claimed (1) that the evidence did not warrant the judgment, and (2) that error obtained in relation to the qualifications of certain of the jurors chosen to try the case.

It appears that October 13, 1932, one Myrtle Boden died intestate, leaving defendant in error as her sole heir; that in the latter part of 1929, the deceased signed and acknowledged two deeds (in each instance called a 'Gift Deed') purporting to convey to the adventist association certain parcels of real estate, one in El Paso county, the other in Pueblo county. Both instruments were recorded October 21, 1932.

Defendant in error alleged that when the deeds were executed, her mother was so insane and distracted in her mind that she was incompetent to execute, acknowledge or deliver said conveyances; and that there had not been delivery. There was denial. The jury found generally for defendant in error, and specifically that at the time of the execution of the deeds Myrtle Boden was not of sufficiently sound mind to 'understand the effect and consequences of her act in so doing.'

1. The witnesses, professional and lay, none challenged as to qualifications or respectability, examined in behalf of the opposing interests, were in disagreement as to the mental capacity of Mrs. Boden. The jury, guided by a charge to which plaintiffs in error did not object, and aided by argument of counsel, weighed the conflicting views of the witnesses with the result already indicated. On motions made Before the case was submitted to the jury, and on a motion for a new trial interposed after the verdict, the trial court ruled adversely to the contention that the verdict did not have sufficient evidentiary support. We are unable to conclude otherwise.

2. The contention that the circumstances attending the selection of certain of the jurors chosen to try the issues operated to prevent a fair trial, grows out of the following: This action and one entitled Joseph F. Underwood v. Neighbors of Woodcraft and L. F. Bloomfield, were filed simultaneously. Underwood is the husband of defendant in error here. Both were represented at trial by counsel appearing for her in this review. Counsel representing plaintiffs in error were their attorneys in the trial court, but they did not appear in the Joseph F. Underwood action. In both cases the question of the mental capacity of Mrs. Boden was of controlling importance, but as of different periods, there, 1932, here 1929; and there, as here, the verdict was to the effect that she was lacking in the required mental attributes. The Joseph F. Underwood Case trial was concluded November 9, 1933, and this one November 18, 1933, both to juries chosen from the same panel summoned for the term. There was identity as to three of the jurors serving in the two trials.

The matter was first mentioned in a supplemental motion for new trial filed out of time by leave of court, and which was supported by affidavits of plaintiffs in error and their counsel, to the effect that they did not have earlier knowledge of the service by the jurors in the other case. The extent of the showing as to diligence in examining the jurors, is that in answer to questions submitted...