Williams v. Miles

• Decision Date: 09 February 1905
• Citation: 102 N.W. 482,73 Neb. 193
• Parties: WILLIAMS ET AL. v. MILES ET AL.
• Court: Nebraska Supreme Court

73 Neb. 193

102 N.W. 482

WILLIAMS ET AL.

v.MILES ET AL.

Supreme Court of Nebraska.

Feb. 9, 1905.

Syllabus by the Court.

1. The decision of a law question by this court upon the first appeal of a cause will ordinarily be adhered to upon a second appeal as the law of the case. No exception to this rule will be made when the question so determined is one of practice, and the parties have been guided by such decision in the second trial of the case.

2. When a proceeding is begun in the county court, and appealed to the district court, and there tried, an application for a new trial on the ground of newly discovered evidence can be made only in the district court.

3. Under the statute allowing appeals “in actions in equity,” any order or proceeding in such action that may be brought to this court for review may be brought by appeal.

4. In an action in equity to vacate a judgment at law, the district court may grant a new trial for the same reasons and upon the same conditions that it may in other equity causes.

5. In an action tried in the district court upon appeal from the county court, the time in which an application for a new trial may be filed runs from the date of the judgment of the district court. This is so though the action or proceeding is one of which the county court has exclusive original jurisdiction.

6. To obtain a new trial on the ground of newly discovered evidence, it must be made to appear that the party applying has used due diligence to obtain the evidence and present the same at the trial. The pleadings and evidence in this case show such diligence.

7. In such application for a new trial, it must appear that the new evidence is of so controlling a nature as to probably change the result of the former trial. If the party applying for the new trial failed upon the former trial for want of sufficient proof of an essential fact which the new evidence strongly tends to prove, it sufficiently appears that such evidence would probably change the result.

8. When a subsequent will is lost or cannot be produced, it is competent to prove by parol that it contained a clause revoking the former will.

9. If a prior will is proposed for probate by a beneficiary thereof, whose testimony is that he found the will among the effects of the deceased, but did not find a later one, which the evidence shows it would plainly be to his interest to destroy, it will not be presumed that the testator himself destroyed the later will, and that in so doing it was his purpose and intention to revive the former one. The existence of a fact cannot be presumed from another fact which itself rests wholly on presumption.

Appeal from District Court, Richardson County; Thompson, Judge.

Action by Joseph Williams and others against Joseph H. Miles and others. From the judgment, plaintiffs and Samuel A. Miles, defendant, appeal. Reversed.John L. Webster, Smith P. Galt, Reavis & Reavis, I. J. Ringolsky, and J. H. Atwood, for appellants Williams et al.

J. H. Broady, for appellant Miles.

Clarence Gillespie, E. Falloon, F. Martin, J. W. Deweese, and T. J. Mahoney, for appellees.

SEDGWICK, J.

After the death of Steven B. Miles, an instrument purporting to be his last will and testament was duly presented to the county court of Richardson county, and, upon consideration of that court, was duly allowed as his last will. After the time for taking an appeal from this order of the probate court had elapsed, these appellants and others filed a petition in the county court to set aside the probate of the will, and asking for leave to present for probate an alleged later will of the decedent, and for general equitable relief. Issue was joined upon this petition, and upon trial in the county court the action was dismissed. An appeal was taken to the district court, and, upon trial, judgment was there also rendered in favor of the defendants (the appellees here), and from that judgment an appeal was taken to this court. A motion was made in this court to dismiss the appeal on the ground that the action was not appealable, and that this court had no jurisdiction of the action by appeal. This motion was overruled. Williams v. Miles, 63 Neb. 859, 89 N. W. 451. Afterwards, upon final hearing in this court upon the merits of the controversy, the judgment of the district court was affirmed (Williams v. Miles [Neb.] 94 N. W. 705, 62 L. R. A. 383), and a motion for rehearing therein was overruled (Williams v. Miles [Neb.] 96 N. W. 151). Before the action was disposed of in this court the appellants began this proceeding in the district court of Richardson county. It is a petition for a new trial on the ground of newly discovered evidence. Upon the trial of this action in the district court a judgment was rendered in favor of the appellees, and the appellants have again appealed to this court. A motion of the appellees to dismiss this appeal was overruled. No opinion was filed at the time, and it seems proper to briefly state the reasons for that ruling:

(1) An able and exhaustive argument is made in the briefs that the original action brought in the county court to vacate the order admitting the will to probate is not an action in equity. It is urged that the county court is not given any general equity jurisdiction, and that, while it may exercise equitable powers incidentally, actions in equity, within the meaning of the statute providing for appeals in equity, cannot be brought in that court. It is also urged that the proceeding in the county court to vacate the probate of the will was brought under subdivision 4 of section 602 of the Code, proceedings under that section being expressly made available in the county court in probate matters by section 610. The writer does not desire to express an opinion upon the merits of this contention when viewed in the light of an original question. The answer of appellants to this argument is that when the decision upon this application for a new trial was against them in the district court, and they were compelled to determine whether their remedy was by appeal to this court or by petition in error, they had before them the opinion of this court upon the former appeal (63 Neb. 860, 89 N. W. 451), and by that opinion it was decided that this is an action in equity, and appealable to this court. They acted upon that decision, and again brought the case here by appeal. We think this is a complete answer to the argument of appellees on this point. If a decision of this court should ever become the law of the case, it should be upon a question of practice, when the parties to the litigation have acted upon that decision and guided their practice by it. It is established, then, as the law of this case that the proceeding in the county court to vacate the probate of the will was an action in equity, within the meaning of the statute allowing appeals to this court.

(2) The next ground for the motion was that the proceeding was begun in the wrong court. The county court is by the Constitution given original jurisdiction in all probate matters, and by statute it has exclusive original jurisdiction of the probate of wills. The statute, however, provides that: “In all matters of probate jurisdiction, appeals shall be allowed from any final order, judgment, or decree of the county court to the district court.” Cobbey's Ann. St. 1903, § 4823. Section 4828 provides that, when an appeal has been perfected in the district court, “that court shall be possessed of the action, and shall proceed to hear, try and determine the same, in like manner as upon appeals brought upon the judgment of the same court in civil actions.” This removes the issues to the district court for final determination. The district court must “hear, try and determine the same.” The evidence is taken and the cause tried without regard to the evidence in the lower court. The result, not the case itself, is certified back to the county court. After the district court becomes so possessed of the case, the county court will never have any further jurisdiction over the issues so removed. If there is another trial of the case, it must be in the district court. There can be no doubt that the district court is the place to make application for such trial. It was determined by this court upon the first appeal that the action to set aside the probate of the will was a new action, equitable in its nature, and was properly begun in the county court, and afterwards appealed to the district court. There having been a trial thereof in the district court, that court, and no other, might grant a new trial. This proceeding for a new trial, then, was rightly brought in the district court.

(3) The third ground for the motion is stated in the brief as follows: “No appeal lies from the district court to this court for refusing an application made in the former court for a new trial to set aside a probated will on the ground of newly discovered evidence. The right to maintain this action, if at all, is given by section 318 of the Code.” Risse v. Gasch, 43 Neb. 287, 61 N. W. 616, is relied upon. That was an ordinary contest of the probate of a will, appealed from the county court to the district court, and proceedings in error were prosecuted in this court to reverse the judgment of the district court. It was determined upon the former appeal, and has become the law of this case, as before pointed out, that this action begun in the county court to set aside the probate of the will was an action in equity, and was properly tried as such in the district court upon appeal, so that the application for a new trial was an application in an action in equity. It is contended in the brief that an order denying an application for a new trial in an action in equity, under section 602 of the Code, is not appealable, but can only be reviewed in this court upon proceedings in error. Browne v. Croft, 3 Neb. (Unof.) 133, 91 N. W. 177, is cited for this doctrine, but upon...