State v. Nieuwenhuis

• Decision Date: 09 January 1926
• Docket Number: 5632.
• Citation: 207 N.W. 77,49 S.D. 181
• Parties: STATE v. NIEUWENHUIS et al.
• Court: South Dakota Supreme Court

207 N.W. 77

49 S.D. 181

STATE v. NIEUWENHUIS et al.

No. 5632.

Supreme Court of South Dakota

January 9, 1926

Appeal from Circuit Court, Charles Mix County; John G. Bartine Judge.

Petition by the State to contest the will of Henry P. Tjarks deceased. Judgment for proponents. Albert Nieuwenhuis and others, and the State appeals. Reversed, with direction.

See also, 43 S.D. 198, 178 N.W. 976; 46 S.D. 154, 191 N.W. 446.

Buell F. Jones, Atty. Gen., E. D. Roberts, Asst. Atty. Gen., and C C. Caldwell, of Sioux Falls, for the State.

G. M. Caster and A. B. Beck, both of Lake Andes, for respondents.

BURCH C.

This action involves the contest of a lost will and for the third time is before us on appeal. Henry P. Tjarks died on the 9th day of January, 1916. Some eight months later, September 30, 1916, a petition was filed in the county court of Charles Mix county to probate his will. It was claimed that Tjarks had made a will, which was destroyed after his death by accident, and proceedings were had to probate the will as a lost will under the provisions of section 3213 to section 3216, inclusive. Said Tjarks left no heirs capable of inheriting from him, and the state of South Dakota, claiming an escheat, contested the will. From a judgment of the county court in favor of contestant, proponents appealed on questions of both law and fact to the circuit court, where the judgment of the county court was affirmed. On appeal to this court the judgment of the circuit court was reversed, because the lower court excluded evidence of declarations of decedent to third parties that he had made a will in favor of devisees. The first three assignments of error now before us complain of the admission of such evidence in the subsequent trial. The former decision on this question (State v. Nieuwenhuis, 43 S.D. 198, 178 N.W. 976) is the law of this case, and we therefore decline to consider these assignments.

The verdict of the jury in the last trial of this case was in favor of proponents, and the court rendered judgment on the verdict, because, as stated by the court, he considered the verdict binding on him as in an action at law. It is contended by appellant that such verdict was advisory only, and that the court should have made his own findings of fact. If the verdict is advisory only, then the case must be remanded, with direction to the lower court to make findings of fact and render judgment in accordance therewith.

The statute applicable to appeals from the county court to the circuit court pertaining to the right to trial by jury is a part of section 3564, R. C. 1919, as follows:

"All questions of fact arising upon such appeal shall be, at the request of any party to such proceedings, triable by jury, and general or special verdicts may be required by the court, which shall have the same force and effect as verdicts in actions at law."

This section was originally section 359, Probate Code 1903; the portion pertaining to jury trial reading: "Such appellate court has the same power to decide the questions of fact which the county court or judge had, and it may, in its discretion, as in suits in chancery, and with like effect, make an order for the trial by a jury of any or all the material questions of fact arising upon the issues."

Section 359, P. C. 1903, was amended by chapter 182, S. L. 1917, to provide:

"All questions of fact arising upon such appeal shall be, at the request of any party to such proceedings, triable by jury, and general or special verdicts may be required by the court, which shall have the same force and effect as verdicts in other cases."

The wording of the statute as it now stands is the language of the Code commission in revising chapter 182, S. L. 1917, and appellant, in discussing the effect of the statute, argues, first: That the Code commission had no power to change the meaning of the statute as it existed at the time of the revision, and for that reason we must conclude that the meaning was not intended to be changed, and construe the statute by the language of the earlier enactment; second, that, since the distinctions between law and equity have been abolished, the words "actions at law" are not to be construed as making the verdict binding as in common-law actions, cognizable by the law courts, because to do so recognizes a distinction; and, third, that, if the statute is to be construed as intending to make the verdict of the jury binding on the court as in jury trials of law actions, then it is unconstitutional as infringing upon the powers of judges and courts provided by the Constitution. In support of its latter contention appellant cites Brown v. Kalamazoo Circuit Judge, 75 Mich. 274, 42 N.W. 827, 5 L. R. A. 226, 13 Am. St. Rep. 438, which construes a statute attempting to provide for jury trials in chancery cases, making the verdicts binding as in actions at law. Therein it is said:

"The functions of judges in equity cases in dealing with them is as well settled a part of the judicial power, and as necessary to its administration, as the functions of jurors in common-law cases. Our Constitutions are framed to protect all rights. When they vest judicial power they do so in accordance with all of its essentials, and when they vest it in any court, they vest it as efficient for the protection of rights, and not subject to be distorted or made inadequate. The right to have equity controversies dealt with by

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