Stalker v. Breeze

• Citation: 114 N.E. 968,186 Ind. 221
• Decision Date: 30 January 1917
• Docket Number: No. 22894.,22894.
• Parties: STALKER v. BREEZE.
• Court: Supreme Court of Indiana

186 Ind. 221

114 N.E. 968

STALKER

v.BREEZE.

No. 22894.^*

Supreme Court of Indiana.

Jan. 30, 1917.

Appeal from Superior Court, Elkhart County; James L. Harman, Judge.

Action by Mary Ann Breeze against John W. Stalker. Judgment for plaintiff, and defendant appeals. Affirmed.

C. C. Raymer, of Elkhart, for appellant. Conley, Frank & Conley and William B. Hile, all of Elkhart, for appellee.

ERWIN, J.

This was an action by appellee to contest the validity of the will of her brother, John W. Stalker, an elderly bachelor,and to set aside the probate thereof for the reason that decedent was of unsound mind, and that the will was unduly executed. The will in question was executed on December 15, 1913, just a few hours prior to testator's death. The will gave the entire property of testator to his nephew and namesake, John W. Stalker, of Stagg, Cal. Appellee was a beneficiary under a prior will dated August 25, 1888. Trial was had by jury, resulting in a verdict and judgment in favor of appellee, declaring the will invalid and setting aside the probate thereof.

Appellant filed his motion for new trial assigning 157 causes therefor. This motion was overruled, and the only error assigned calls in question that ruling of the court.

Appellant contends that the verdict of the jury is not sustained by sufficient evidence. Without setting out the evidence herein, which is voluminous, it is sufficient to say that, in our opinion, there was at least sufficient evidence introduced in the case to form an issue of fact as to testator's testamentary capacity, and, that issue having been submitted to the jury, which found against the validity of the will, this court could not, if it so desired, invade the province of the jury and weigh the evidence. Boland v. Claudel, 181 Ind. 295, 298, 104 N. E. 577;Public Utilities Co. v. Handorf, 112 N. E. 775.

It is contended by appellant that the trial court erred in refusing to give his tendered instructions numbered 1 to 22. These tendered instructions were, in all particulars in which they were applicable to the evidence and issues of this case, included in the instruction given by the court. The court's instructions covered fully every phase of the case, including what did and what did not constitute unsoundness of mind; what constituted a proper execution of the will, as to signing and witnessing; the burden of proof and facts necessary to be proven to set aside the will, with every phase of the law, covering the facts and controversy in the case. We find no reversible error in the refusal to give instructions tendered or in the instructions given by the court. Boland v. Claudel, 181 Ind. 295, 104 N. E. 577.

Appellant contends that the court erred in permitting certain depositions to be read in evidence over his objections, made at the time appellee offered to read them, that the reason for taking the depositions is not shown to still exist. The depositions show that the witnesses were all nonresidents of the state. It is not contended that the deposition was improperly taken, nor that the witness was “produced in court”; therefore the court did not commit error. Louisville, etc., R. Co. v. Hubbard, 116 Ind. 193, 194, 18 N. E. 611.

A motion to suppress a deposition should be made before the case is submitted to the jury for trial. The motion here was not so made, and came too late. Cohen v. Richman, 55 Ind. App. 164, 167, 102 N. E. 284.

It is contended that the court erred in overruling the motion for new trial because of certain newly discovered evidence. An examination of the affidavits in support of the motion, which set out the newly discovered evidence, shows that the evidence would be cumulative and impeaching only, and of a character not likely to change the result at another trial. The rule is:

“That newly discovered evidence of a merely cumulative character, or which tends only to the impeachment of a witness, without rendering a different result from that already reached probable, affords no sufficient ground for a new trial.”

We are therefore of the opinion that the court did not commit error in its ruling upon this cause for new trial. Sutherlin v. State, 108 Ind. 389, 391, 9 N. E. 298;Williams v. State, 170 Ind. 630, 632, 85 N. E. 113;Ludwig v. State, 170 Ind. 648, 654, 85 N. E. 345;Ray v. Baker, 165 Ind. 74, 88, 74 N. E. 619;City of Hammond v. Jahnke, 178 Ind. 191, 99 N. E. 39;Thain v. State, 182 Ind. 345, 349, 106...