Wall's Exor v. Dimmitt

• Decision Date: 24 January 1911
• Citation: 141 Ky. 715
• Court: Kentucky Court of Appeals
• Parties: Wall's Exor, et al. v. Dimmitt.

141 Ky. 715

Wall's Exor, et al. v. Dimmitt.

Court of Appeals of Kentucky.

Decided January 24, 1911.

Appeal from Mason Circuit Court.

E. L. WORTHINGTON, GARRETT S. WALL, and LEWIS APPERSON, for appellants.

T. D. SLATTERY and W. D. COCHRAN, for appellee.

OPINION OF THE COURT BY JUDGE CARROLL — Affirming.

This is a will contest, and there have been four jury trials. On each trial the verdict was against the will, and this is the fourth appeal to this court by the appellants from judgments of the lower court declaring that the paper offered as the last will of Elizabeth A. Wall was not her will. The former opinions may be found in Wall v. Dimmitt, 114 Ky., 923; Wall v. Dimmitt, 29 Ky. Law Rep., 670; Wall v. Dimmitt, 132 Ky., 747. On each of the other appeals we said in substance that while there was sufficient evidence to take the case to the jury, the verdict in each case was flagrantly against the evidence, and for this reason the judgments on the first and second appeals were reversed. On the third appeal the judgment was reversed for error in the admission of evidence. On this appeal we are urged to again reverse the case because the verdict is flagrantly against the evidence and for errors of law committed by the trial court. The first error assigned is that the court should not have admitted evidence as to statements made by Dr. Wall, the husband of the testatrix, to Johnson, Hunter and Gillfoil, and testified to by them. The competency of this evidence is objected to upon the ground that Dr. Wall, who had no interest in the estate, was dead when the testimony was introduced. A sufficient answer to this is that the same objection was made and urged upon the court upon the last appeal; and as it was not ruled in the last opinion that the evidence was incompetent, it is too late now to raise the question. Upon this point we said in Stewart's Adm'r v. L. & N. R. Co., 136 Ky., 717:

"The evidence given for the defendant, which is now objected to, is practically the same as that given for it on the former trial, and in the opinion on the former appeal none of it was condemned. That opinion is the law of the case, and matters which might have been brought to the attention of the court then, and were not, are concluded by that opinion. If errors are made on the trial against the appellee, and the case is brought here and reversed, he must call the attention of the court to the errors which he wishes to correct, for the circuit court has the right to assume that matters not passed on in the opinion were correctly ruled on in the trial. Were it otherwise, litigation would be interminable and an appeal by one party would only be a stepping stone to another appeal by another."

In United States Fidelity & Guaranty Co. v. Blackley, Hurst & Co., 27 Ky. Law Rep., 392, we said:

"It is elementary that on the second appeal, the opinion on the first appeal must be treated as the law of the case, and all questions which were then presented and properly before the court are as conclusively settled, though not referred to in the opinion, as if each are specifically mentioned and considered." To the same effect is Illinois Life Ins. Co. v. Wortham, 119 S. W. 802; Smith v. Brannin, 79 Ky., 114; Dupoyster v. Fort Jefferson Improvement Co., officially reported in 121 Ky., 518, but cited by counsel for appellee as being in 89 S. W., 509.

It is also urged that instruction No. 1, relating to the execution of the will was erroneous, but this instruction was given upon each trial...