Stutsman v. Sharpless

• Decision Date: 24 October 1904
• Citation: 101 N.W. 105,125 Iowa 335
• Parties: STUTSMAN ET AL. v. SHARPLESS.
• Court: Iowa Supreme Court

125 Iowa 335

101 N.W. 105

STUTSMAN ET AL.

v.SHARPLESS.

Supreme Court of Iowa.

Oct. 24, 1904.

Appeal from District Court, Johnson County; M. J. Wade, Judge.

The jury found that deceased was of unsound mind when he executed a paper purporting to be his last will. From judgment thereon, proponents appeal. Reversed.Dutcher & Davis, for appellants.

Remley & Ney, for appellee.

LADD, J.

Samuel Sharpless was born in 1822, and married the contestant, then a widow, in 1857. Shortly afterwards his mother came to live with them, bringing with her a grandchild two years old, the daughter of deceased's only sister. This child continued in the family, after the grandmother's death, until 1891, when she was married, and to her was born Charlotte Sharpless Stutsman, May 12, 1897, and Jean Elizabeth Stutsman, May 20, 1900. Samuel died June 5, 1901. Two wills were filed for probate, one, executed in 1868, leaving all his property to his widow, and the other, executed in 1901, giving her the use of it for life, with the remainder to the children of Mrs. Stutsman, save a legacy to a supposed namesake. The widow objected to probating the last will, on the ground of the alleged incapacity of the testator. Charles M. Dutcher was appointed guardian ad litem for the children, and a trial was had which resulted in a verdict for the contestant December 6, 1901. A motion for new trial was filed and then withdrawn. On the 10th day of the same month the court entered an order admitting the will of 1868 to probate, and appointed executors thereunder. The proponents perfected an appeal December 12, 1901, but this was dismissed by this court on the ground that no judgment had been entered on the verdict. On December 31, 1902, appellants requested the district court to enter judgment as of December 10, 1901, rejecting the will of 1901, in order to enable them to appeal, and this motion was sustained, notwithstanding objection interposed by contestant. The proponents again perfected an appeal June 5, 1903.

1. Appellee moves to dismiss the last appeal on the grounds that a second appeal cannot be taken in the same case, and that, as the guardian ad litem of proponents claimed and received compensation from the executors of the will of 1868, the proponents are estopped from prosecuting this appeal. That a second appeal cannot be taken while the first is pending is evident, for the cause is then before the Supreme Court for consideration. Newbury v. Getchell & Martin Lumber Co., 106 Iowa, 140, 76 N. W. 514. But after that has been dismissed on motion of appellant the judgment in the district court stands precisely as before, and is subject to review if the second appeal is perfected within the time fixed by statute. Groendyke v. Musgrave, 123 Iowa, 535, 99 N. W. 144. Here the second appeal was perfected within 6 months of the entry of the nunc pro tunc judgment, but not until nearly 18 months after the return of the verdict and the date as of which the judgment nunc pro tunc was entered, and it is argued that this was not in time. In Callanan v. Votruba, 104 Iowa, 672, 74 N. W. 13, 40 L. R. A. 375, 65 Am. St. Rep. 538, we held that there is no judgment until that rendered is actually spread upon the records of the court, and in Kennedy v. Citizens' Nat. Bank, 119 Iowa, 123, 93 N. W. 71, that appeal may not be taken from the mere order for judgment by the judge not entered of record. In Carter v. Sherman, 63 Iowa, 689, 16 N. W. 707, the parties agreed that judgment might be entered in vacation as of the September, 1882, term of court, which adjourned during that month. The decision was not made until December 19th of the same year, and the court held that the time within which an appeal might be taken should be computed from the actual entry of the judgment, rather than from the date as of which it was rendered. In principle these decisions are controlling, for in effect they lay down the rule that the period within which an appeal may be taken begins to run from the entry of the judgment of record, regardless of when announced orally or in writing by the judge, for until then there is no judgment from which an appeal may be taken. For some purposes the judgment may relate back, may be now as of then, but not in respect to procedure essential to secure a review, else a mere ministerial officer of the court, by omitting to make the proper entry, might defeat the right of an appeal entirely. As directly in point, see Andrews' Adm'r v. Branch Bank at Mobile, 10 Ala. 375;In re Fifteenth Avenue Extension, 54 Cal. 179;Coon v. Grand Lodge, etc. (Cal.) 18 Pac. 384.Johnson v. Smith, 14 Tex. 412. The appeal was in time. But it is said that the entry in December, 1901, admitting the will of 1868 to probate, was an order or judgment from which the appeal might and should have been taken. A sufficient answer is that the due execution of that will was not an issue in the case. True, Mrs. Sharpless alleged its existence as a basis of her objections, but as deceased was childless she was interested to the extent of one-sixth of the estate, regardless of that will, and, doubtless for this reason, the parties stipulated that the only issue to be tried was whether deceased was of sound and disposing mind May 11, 1901, the date of the last will. See In re Fallon's Will, 107 Iowa, 120, 77 N. W. 575. The first will was not even introduced in evidence, nor was proof of its execution offered. Before it could be admitted to probate, other evidence must have been received. Whether deceased was of sound mind when he executed the will of 1901 being the only issue, an order in another matter upon which no evidence had been adduced cannot be regarded as pertaining to the case. The most that can be said is that probating the first will was likely to follow as a natural consequence the rejection of the last will. A decisive test, as we think, is that the rejection of the last will would not, under the circumstances disclosed, bar those interested from contesting the first, and, this being true, the order with respect to the first must be...