Wheeler v. St. Joseph & W. Ry. Co.

• Decision Date: 06 March 1884
• Citation: 31 Kan. 640,3 P. 297
• Court: Kansas Supreme Court
• Parties: DEWITT C. WHEELER, Administrator, &c., v. THE ST. JOSEPH & WESTERN RAILROAD COMPANY

3 P. 297

31 Kan. 640

DEWITT C. WHEELER, Administrator, &c., v. THE ST. JOSEPH & WESTERN RAILROAD COMPANY

Supreme Court of Kansas

March 6, 1884

Error from Doniphan District Court.

AT the March Term, 1883, the court overruled the motion of Wheeler as administrator of the estate of Frank Wheeler, deceased for judgment in his favor upon the findings of the jury, and sustained the motion of the Railroad Company for judgment in its favor, revoking Wheeler's letters of administration. He brings the case here. The facts are stated in the opinion.

Judgment reversed and cause remanded.

W. D Webb, for plaintiff in error.

Doniphan & Reed, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was a proceeding instituted originally in the probate court of Doniphan county, Kansas, by the St. Joseph & Western railroad company, to procure the revocation of the letters of administration granted by said court, on December 27, 1881, to DeWitt C. Wheeler on the estate of Frank Wheeler, deceased. On the final hearing of the case in the probate court that court overruled the application of the railroad company, and the railroad company then appealed to the district court of Doniphan county. In the district court the case was tried before the court and a jury, upon the evidence introduced and submitted by the respective parties, and upon such evidence special findings were made as hereafter stated. By the consent of parties, no instructions were given to the jury and no general verdict was found, but the jury simply gave answers to certain special questions of fact submitted to them by the court and the par-ties. The special questions of fact, with the answers given, are as follows:

"Ques.. 1: Did Frank Wheeler have any money in his own possession at the time of his death? Ans.: No.

"Q. 2. If question 1 is answered in the affirmative, how and from whom did he obtain the money? A. .

"Q. 3. Did said Frank Wheeler have on deposit with his mother any money at the time of his death? If so, how much? A. Yes; $ 3.50.

"Q. 4. If question 3 is answered in the affirmative, how and from whom did Frank Wheeler obtain said money? A. For work for his father at Mrs. Aberlies', $ 2.50; and for working for Hazenbaugh, $ 1.

"Q. 5. Aside from the foregoing, did any person owe said Frank Wheeler anything at the time of his death? A. Yes.

"Q. 6. If question 5 is answered in the affirmative, who was indebted to said Frank Wheeler, and what was the indebtedness for? A. Moore and Hazenbaugh, for weeding onions and hanging paper.

"Q. 7. Had said Frank Wheeler at the time of his death any wearing apparel that he had paid for himself? A. Yes.

"Q. 8. If question 7 is answered in the affirmative, what was the value of such clothing? A. $ 5.

"Q. 9. If question 7 is answered in the affirmative, how and from whom did said Frank Wheeler obtain the money that he paid for such clothing? A. For playing in the band.

"Q. 10. Did said Frank Wheeler at the time of his death have any wearing apparel other than that heretofore mentioned? A. Yes.

"Q. 11. If question 10 is answered in the affirmative, what was the value of such clothing? A. Don't know.

"Q. 12. If question 10 is answered in the affirmative, how and from whom did he obtain such clothing, or the money to pay for the same? A. Don't know.

"Q. 13. Had said Frank Wheeler at the time of his death an interest in the Troy band? A. Yes.

"Q. 14. If question 13 is answered in the affirmative, how and from whom did said Frank Wheeler obtain said interest? A. From his father and Frank Berry.

"Q. 15. If question 13 is answered in the affirmative, what was the cash value of said interest? A. $ 50.

"Q. 16. If question 13 is answered in the affirmative, did said Frank Wheeler have an exclusive interest in any particular instrument, or an interest in common with several others in all the instruments and the business of the band? A. Interest in common.

"Q. 17. Did said Frank Wheeler at the time of his death have any other property, interests, or money, or credits, than heretofore mentioned? A. No.

"Q. 18. If question 17 is answered in the affirmative, what were said interests, or money, or credits? A. .

"Q. 19. If question 17 is answered in the affirmative, how and from whom were such interests, or money, or credits, obtained? A. .

"Q. 20. Did the father of said Frank Wheeler ever release his time, or relinquish his rights to the time and service of said Frank Wheeler while a minor? A. Yes.

"Q. 21. If question 20 is answered in the affirmative, state when and how? A. When weeding onions."

No exception was taken to any of these findings of the jury, and no motion was made for a new trial, but both parties moved for judgment upon the findings, and the court overruled the motion of Wheeler and sustained the motion of the railroad company, and rendered judgment in favor of the railroad company and against Wheeler, revoking Wheeler's letters of administration; and Wheeler, as plaintiff in error, now brings the case to this court, and asks for a reversal of said judgment.

If we pass over the questions whether this case was rightfully and regularly brought in the probate court, and was rightfully and regularly appealed to the district court, then the only other question involved in the case is, whether the facts as found by the jury will authorize a judgment in favor of the railroad company and against the plaintiff in error, DeWitt C. Wheeler, revoking his letters of administration. No facts were admitted by the pleadings, no agreed statement of facts was made or filed, no exception was taken to any of the findings made by the jury, no request was made for other or additional findings, and no motion was made for a new trial; hence we cannot take into consideration any facts other than those found by the jury, nor can we review the evidence. Really, however, the evidence supports the findings of the jury. Presumptively, the letters of administration were properly issued; presumptively, they were valid in their inception; and presumptively, they are valid still, unless the facts found...