Solomon v. Lampl

• Decision Date: 04 June 1932
• Docket Number: 30287.
• Citation: 11 P.2d 1028,135 Kan. 469
• Parties: SOLOMON v. LAMPL et al. [*]
• Court: Kansas Supreme Court

11 P.2d 1028

135 Kan. 469

SOLOMON v. LAMPL et al. ^[*]

No. 30287.

Supreme Court of Kansas

June 4, 1932

Syllabus by the Court.

In suit to set aside will in which defendants filed cross-petition to have title quieted, court properly refused to strike cross-petition for misjoinder and properly held cause for adjudication, notwithstanding plaintiff's withdrawal of her petition (Rev. St. 1923, 60--709).

In action to set aside will, judgment obtained in previous similar action by present defendant held competent to show basis of present defendant's claim.

Evidence held to sustain judgment denying plaintiff's claim, in action to set aside will, and sustaining defendants' claim to quiet title.

Court's findings based on competent, though disputed, evidence, will not be disturbed on appeal.

Refusal of new trial for newly discovered evidence of plaintiff's heirship held proper under evidence, in action to set aside will.

Supreme Court has no power to consider evidence not submitted to trial court.

1. Plaintiff brought action to set aside a will on the ground of the testator's incompetence and to require certain properties deeded by him to certain grantees to be reconveyed to whomsoever the court should decide was entitled thereto and for an adjudication of her heirship predicated upon her claim that she was the illegitimate daughter of the deceased son and sole heir of the testator, and that she had been openly and notoriously acknowledged by him as his daughter. Pending this action another claimant, principal defendant herein, had successfully prosecuted to judgment another action to set aside the will and to establish his heirship. When the will was thus set aside, an administrator was appointed to administer the estate. The successful litigant in the action to set aside the will and the administrator were properly impleaded in this action as defendants. They filed answers and cross-petitions denying plaintiff's relationship to the deceased son of the maker of the will which had been adjudicated a nullity, and denying that such deceased only son had openly and notoriously acknowledged her as his daughter; and in cross-petitions filed with their answers the codefendants alleged facts to support their claims to the estate in question and praying that their respective titles and interests be quieted as against plaintiff. Her motion to strike the cross-petitions for misjoinder was overruled; she then withdrew her petition, but the trial court held the cause for adjudication on the cross-actions set up by the codefendants. Held, the motion to strike the cross-petitions was properly denied, and the cross-actions were properly prosecuted to judgment.

2. Error assigned on the admission in evidence of the judgment in the preceding action in favor of the principal defendant herein setting aside the will considered and not sustained such evidence being competent and probative to show basis of the principal defendant's claim of title, although such judgment was not conclusive against plaintiff.

3. Record examined, and the evidence held sufficient to sustain the judgment in favor of the principal defendant and the administrator; and the rule followed that the trial court's findings of fact based upon competent, although disputed, evidence, will not be disturbed on appeal.

4. Plaintiff's evidence adduced at the trial and in her motion for a new trial considered, and held that the trial court's finding that plaintiff had not established her claim of heirship cannot be disturbed, and that her motion for a new trial was properly denied.

5. On appeal, the Supreme Court has no power to consider evidence which was not submitted to the trial court, nor additional evidence whose truth might be the subject of controversy or dispute before a tribunal authorized to determine issues of fact.

Appeal from District Court, Sedgwick County, Division No. 1; John E Alexander, Judge.

Action by Maurea Solomon against Ben Lampl, as administrator of the estate of M. R. Diver, deceased, and others, in which defendants Frank R. Diver and another filed a cross-petition. Judgment for defendants, and plaintiff appeals.

T. J McCaffrey, G. E. Scanland, Fred L. Hoyt, and Roger Stephens, all of Oklahoma City, Okl., and T. A. Sullivan, of Wichita, for appellant.

Henry Lampl, Dempster O. Potts, J. A. Conly, Rupert Teall, and Dallas Potts, all of T. J. McCaffrey, G. E. Scanland, Fred L. Hoyt, and Roger Stephens, all of Oklahoma City, Okl., and T. A. Sullivan, of Wichita, for appellant.

DAWSON J.

This action originated as a suit to set aside the will of the late M. R. Diver of Wichita on the ground of want of testamentary capacity and undue influence. Among the original defendants were the Fourth National Bank in Wichita, executor of the will, and Frank R. Diver, one of the legatees under the will.

Plaintiff alleged that she was an heir of M. R. Diver; that he died seized of real and personal property in Kansas, California, Arkansas, and Oklahoma, of the value of $300,000; that certain persons had procured deeds to certain of M. R. Diver's real estate through undue influence. Plaintiff also pleaded the facts of the litigation brought by Frank R. Diver to set aside the will of M. R. Diver as far as it had then progressed and alleged that he claimed to be an heir at law of M. R. Diver. The prayer of plaintiff's petition read:

"Wherefore plaintiff prays that the alleged and purported will of said M. R. Diver, deceased, hereinbefore referred to as Exhibit 'A', be cancelled, set aside and held for naught, and that the probate of said purported will be cancelled, set aside and held for naught; that the defendants The Fourth National Bank in Wichita be required to execute such deeds of conveyance to the lands acquired by them belonging to the estate of M. R. Diver, deceased, to such persons as may to the court seem proper, and that the plaintiff have such further, other or different relief to which she may in law or equity be in good conscience entitled."

Defendant Frank R. Diver filed an answer and cross-petition in which he admitted the infirmities in the will, and alleged that it had been set aside and held for naught in an action which he as plaintiff had prosecuted to final judgment in the district court of Sedgwick county, Kan. But in his cross-petition he alleged that he was the owner of the legal and equitable estate in certain described lands and lots in Wichita, also in Sumner county, Kan., Crawford county, Ark., Oklahoma county, Okl., and in the city of Los Angeles, Cal., described in plaintiff's petition, and that he was entitled to the quiet and exclusive possession of every part thereof. He also alleged that plaintiff claimed some right, title, or interest in the described lands and lots, the exact nature of which he did not know, but that any and all of plaintiff's claims thereto had no basis in law or in fact, and that they were asserted by plaintiff for the sole purpose of harassing defendant and clouding his title to the aforesaid properties. He prayed that his title be quieted and for an adjudication that plaintiff had no title or interest therein and for other proper relief in equity.

After this lawsuit was begun, the litigation growing out of an abortive marriage between M. R. Diver and Ida A. Wilhite (Fourth Nat. Bank v. Diver, 131 Kan. 113, 289 P. 446, 70 A.L.R. 950) was concluded, likewise the litigation brought by Frank R. Diver to set aside the will of M. R. Diver (Diver v. Fourth Nat. Bank in Wichita, 132 Kan. 36, 294 P. 924). Thereupon Ben Lampl as administrator of the estate of M. R. Diver was substituted as defendant in this action for the Fourth National Bank in Wichita as executor and trustee. The administrator filed an answer and cross-petition in which he made substantially the same allegations as those pleaded by the defendant Frank R. Diver, and prayed for relief consistent therewith.

Plaintiff filed motions to strike the cross-petitions of the administrator and of Frank R. Diver on the ground that they were not proper set-offs to plaintiff's action nor new matter in defense thereto nor germane to the subject-matter of plaintiff's action, and that they were unauthorized by the Code of Civil Procedure. These motions were overruled, and plaintiff then filed separate answers to the cross-petitions denying their allegations, challenging the court's jurisdiction to entertain the causes of action alleged therein, and denying that Frank R. Diver was an heir at law of M. R. Diver. Plaintiff also alleged that she was the natural daughter of Joe Diver, deceased, only son of M. R. Diver, and that she had been recognized by Joe Diver, as his daughter, and that such recognition was general and notorious, and that she was the sole and only heir of M. R. Diver, and that "as such heir is entitled to take all of the property, real, personal or mixed, of which the said M. R. Diver died seized or possessed."

Before the case was called for trial, plaintiff dismissed her petition as against all the defendants except Ben Lampl, as administrator, and on the day of the trial she dismissed her petition against him. The cause then proceeded to trial on the issues raised by the cross-petitions and plaintiff's answers thereto. In his opening statement for plaintiff, her counsel said: "The issues as framed here present, as I think, nothing more than a suit to determine adverse claims or quiet title suit as it is sometimes spoken of and we have contested by our answer and we do contest both the heirship of Frank Diver and assert our own heirship. That is the issue as I understand it."

Evidence at length was then adduced in behalf of the cross-petitioners. The mother of Frank R. Diver testified that he was the son of Joe Diver, only son and...