Walker v. Steele
| Decision Date | 09 October 1889 |
| Docket Number | 11,961 |
| Citation | 22 N.E. 142,121 Ind. 436 |
| Parties | Walker, Administrator, v. Steele et al |
| Court | Indiana Supreme Court |
D Turpie, D. S. Gooding and M. B. Gooding, for appellant.
W. R Hough, E. Marsh and W. W. Cook, for appellees.
The appellant, who was the plaintiff in the court below, instituted this action to set aside the transfer of a certain note and mortgage, and to recover the same as a part of the assets of the said estate.
The appellees John Steele and Franklin Steele, filed an answer, which they styled a disclaimer; Samuel Steele, Jr., who is an infant, and Franklin Steele, in his capacity as guardian of the said Samuel Steele, Jr., answered by a general denial.
There was a jury trial, and a verdict returned for the appellees.
The appellant filed a motion for a new trial, which the court overruled, and he excepted to the ruling of the court, and thereupon the court rendered judgment for the appellees.
The errors assigned are as follows:
1st. The circuit court erred in refusing to strike out the disclaimer of John Steele and Franklin Steele from the pleadings, and in overruling the motion to allow a reply to be filed thereto by the appellant.
2d. The circuit court erred in overruling the motion of the appellant for a new trial.
The grounds of the motion to strike out the disclaimer do not appear in the bill of exceptions or elsewhere in the record, therefore if the motion had been one which the court could have properly entertained we can not say that the court erred in overruling it. If no reasons were assigned, or if reasons were given, if they were insufficient, then the court committed no error in overruling the motion.
Counsel for the appellant discuss at some length the action of the court in overruling the appellant's motion for leave to file a demurrer to the disclaimer, but the errors assigned are not broad enough to raise the question.
It is assigned as error that the court erred in overruling the demurrer to the disclaimer, but the record shows that no such demurrer was filed, the court having refused to allow the appellant to file a demurrer.
Under our code of practice, which abolishes all distinctions between law and equity, our mode of procedure is much simplified, and the rules of pleading and practice under the old system in actions at law and suits in equity are very much modified.
Our present system does not recognize any such pleading as a disclaimer except in actions for partition and to quiet title. See section 1072, R. S. 1881.
The paper filed by John and Franklin Steele, and styled a "disclaimer," was nothing more than an answer, confessing the cause of action, and did not require a reply, therefore even had it been proper practice to file a reply the appellant was not injured because of the action of the court in refusing to allow him to reply thereto. See McAdams v. Lotton, 118 Ind. 1, 20 N.E. 523, and authorities cited.
The eleventh reason assigned for a new trial is that the court erred in permitting the appellee John Steele to testify as a witness over the objection of the appellant.
We do not think that the court erred in allowing the witness to testify. Section 498, R. S. 1881, reads as follows:
"In suits or proceedings in which an executor or administrator is a party, involving matters which occurred during the lifetime of the decedent, where a judgment or allowance may be made or rendered for or against the estate represented by such executor or administrator, any person who is a necessary party to the issue or record whose interest is adverse to such estate shall not be a competent witness as to such matters against such estate."
Under this statutory provision two facts must co-exist to render a person incompetent to testify as a witness against the executor or administrator; he or she must be a necessary party to the issue or record, and his or her interest must be adverse to the estate.
In the case under consideration neither of these facts existed. The note and mortgage in question had been assigned by the decedent to Samuel Steele, Jr., and this was an action to set aside the transfer and have the note and mortgage declared to be assets belonging to the estate.
John Steele was claiming no interest in the note or mortgage, and, under the facts alleged in the complaint, he held no interest therein.
The whole controversy was one between Samuel Steele, Jr., his guardian, Franklin Steele, and the appellant; the matters involved could have been fully, completely and finally determined as well without as with John Steele as a party to the action.
It is true the complaint charged a fraud and a conspiracy, and charged John Steele with being a party thereto, but only in case of a destruction of the note was a judgment asked against him, and during the progress of the case, and before he was sworn and testified as a witness the note and mortgage were produced and placed in the custody of the court.
It further appears in the record that the decedent died testate, and that the appellee John Steele was one of the residuary legatees; therefore if the transfer of the note and mortgage was upheld by the judgment of the court, his interest in the estate would be greatly reduced; his interest, therefore, was not adverse to the estate, but in accord with it. Spencer v. Robbins, 106 Ind. 580, 5 N.E. 726. See Martin v. Martin, 118 Ind. 227, 20 N.E. 763; Starret v. Burkhalter, 86 Ind. 439; Upton v. Adams', 27 Ind. 432; Scherer v. Ingerman, 110 Ind. 428, 11 N.E. 8.
The seventh reason assigned for a new trial is the exclusion of the testimony of John C. S. Harrison, a witness offered by the appellant.
One of the paragraphs of the complaint charged that the endorsement on the note in controversy was a forgery. The witness was introduced as an expert, and the appellant offered to prove by him that the endorsement on the note was not in the same handwriting as the signature to what purported to be and was claimed to be the will of the testator.
It is well settled by our own decisions that testimony of this character is only competent where the comparison to be instituted is between the writing in question and another writing which is admitted to be in the hand of the person whose instrument the writing in question is claimed to be. Chance v. Indianapolis, etc., G. R. Co., 32 Ind. 472; Burdick v. Hunt, 43 Ind. 381; Huston v. Schindler, 46 Ind. 38.
The paper purporting to be the will of the testator was not admitted to be one that had been executed by him or to which he had placed his signature.
The twelfth and thirteenth causes for a new trial relate to the admission of certain testimony given by the witness Marion Steele.
The evidence related to a transaction between the appellee Franklin Steele and one Ebenezer Steele, which resulted in a conveyance by Ebenezer to Franklin of 520 acres of land.
The objection is that this transaction took place in the absence of the testator, and that the estate was not, therefore, bound by the evidence. The testimony, as given, was not as to a conversation between these parties, but as to what was said and done as a transaction.
Prior to giving the testimony objected to, the said witness had testified, in substance, that some time in the month of December, 1881, a few months before his death his Uncle Samuel, the decedent, had expressed a desire to talk with him in relation to his, said Samuel's, property, and the disposition of the same; and that he then had a conversation with him in regard to his business and the disposition of his property, in the course...
To continue reading
Request your trial