Wyss v. Wyss

• Decision Date: 03 June 1974
• Docket Number: No. 2--174A30,2--174A30
• Citation: 311 N.E.2d 621,160 Ind.App. 281
• Parties: Leslie L. WYSS, b/n/f Lincoln Nat. Bank & Trust Co. of Fort Wayne, et al., Appellants, v. Eugene W. WYSS et al., Appellees.
• Court: Indiana Appellate Court

Page 621

311 N.E.2d 621

160 Ind.App. 281

Leslie L. WYSS, b/n/f Lincoln Nat. Bank & Trust Co. of Fort

Wayne, et al., Appellants, v. Eugene W. WYSS et al., Appellees.

No. 2--174A30.

Court of Appeals of Indiana, Second District.

June 3, 1974.

Rehearing Denied July 3, 1974.

Robert L. Thompson, Hoffman, Moppert, Solomon, Miller & Thompson, Stephen D. Long, Kennerk, Dumas, Burke & Backs, Fort Wayne, for appellants.

Arthur W. Fruechtenicht, Arthur H. Fruechtenicht, Robert J. Parrish, Jackson, Parrish, Eggers & Larson, Fort Wayne, for appellees.

ON THE APPELLEES' MOTION TO DISMISS OR AFFIRM

PER CURIAM.

This cause is pending before the Court on the appellees' Motion to Dismiss or Affirm which alleges, inter alia, that no questions are presented for review because following the decision by the trial court on October 26, 1973, which constituted new findings and judgment, appellants failed to file a motion to correct errors addressed to such decision.

This cause began in the trial court with the plaintiffs-appellants filing a complaint against the defendants-appellees in two pleading paragraphs. The first sought to set aside the probated will of the decedent Louise J. Wyss and to resist the probation of a second will of the decedent. The second paragraph of complaint alleged an enforceable promise by the decedent to divide her estate equally among her heirs, and that she failed to do so. After a number of preliminary motions, an amended complaint, a change of venue and discovery proceedings, the defendants filed a motion for summary judgment, and later a motion to dismiss and strike addressed to the second pleading paragraph of the complaint.

The trial court sustained the defendants' motion to dismiss and strike the second pleading paragraph of the complaint, sustained the defendants' motion for summary judgment and entered judgment for the defendants. Because of the question raised by the appellees' Motion to Dismiss or Affirm, it is necessary to set out the trial court's finding and judgment on the motion for summary judgment, and also to set out hereinafter the trial court's findings of fact and ruling on the motion to correct errors.

The judgment of the trial court, omitting formal parts, reads as follows:

'SUMMARY JUDGMENT

'Comes now the plaintiffs by their counsel, Kennerk, Dumas, Burk & Backs by Stephen D. Long, and Hoffman, Moppert, Solomon & Miller by Robert L. Thompson, Jr., and comes also the defendants by their counsel, Arthur W. Fruechtenicht and Arthur H. Fruechtenicht, and Jackson, Parrish & Larson by Robert J. Parrish, and the defendants' motion for a summary judgment having been heretofore submitted to this Court for hearing and determination on July 25, 1973, and the Court having seen and inspected said defendants' motion for summary judgment, the defendants' brief in support of motion for summary judgment, the plaintiffs' brief in response to defendants' motion for summary judgment, and the defendants' reply brief, having heard argument of counsel, and being sufficiently advised in the premises, now finds that Burns Indiana Statutes 7--117, being Indiana Code 1971 Section 29--1--7--17 requires that in an action to contest a will, that he allegations be in writing and verified by affidavit.

'The Court further finds that the affidavit to plaintiffs' amended complaint is as follows, to wit: 'State of Indiana, County of Allen SS: The undersigned Eileen (Wyss) Kryder, being duly sworn deposes and says that she is one of the plaintiffs in the above entitled cause of action; that she has read the foregoing complaint and that the facts as set forth therein are true and correct to the best of her knowledge and belief.'

'The Court further finds that a proceedings to contest the validity of a will is a strictly statutory proceeding and that the terms of such statute must be strictly construed.

'The Court further finds that a motion for summary judgment is the proper method for the disposition of this matter, testing whether or not the defendants herein are entitled to a judgment as a matter of law on the question of a verification of the complaint.

'The Court further finds that there is no Indiana case directly in point on the sufficiency that matters were stated 'as true to the best knowledge and belief' under the statute requiring that matters 'be verified by affidavit.'

'The Court further finds that at the time this action was originally filed in the Allen Superior Court that the following Statutes and rules provided a form for a verification, which shall be in the following form or substantially, as follows: 'I (we) affirm under the penalties of perjury, that the foregoing representation(s) is (are) true. Signed: _ _' Burns Indiana Statutes 6--124, Burns Indiana Statutes 2--1074 and Trial Rule 11.

'The Court further finds that the Indiana cases consider the following language, to wit: 'as affiant verily believes' or 'upon affiant's information and belief' . . . These cases have been held to be a sufficient verification, for the reason that the Supreme Court has held that such statements are 'in common use'.

'The Court further finds that since it has been unable to find any Indiana case directly on point as to the specific statement 'as true to the best knowledge and belief', the Court must give attention to other jurisdictions, which have considered the exact language involved in the present matter.

'The Court further finds that in the majority of other jurisdictions where the exact question has been considered, it has been held that statements 'true to the best knowledge and belief' were insufficient, and did not constitute statements 'verified by affidavit'.

'The Court further finds that the defendants herein are entitled to a judgment as a matter of law, in that the first paragraph of the amended complaint is not 'verified by affidavit' as required by Section 29--1--7--17 Indiana Code of 1971, Burns 7--117.

'It is therefore now ordered, adjudged and decreed by the Court that a summary judgment be, and it is hereby entered for the defendants, and that the costs are assessed against the plaintiffs. Judgment accordingly.'

Thereafter the plaintiffs timely filed their Motion to Correct Errors. After conducting a hearing on the motion, and taking the same under advisement, the trial court subsequently entered his findings of fact and ruling on the Motion to Correct Errors, which, omitting formal parts, reads as follows:

'RULING ON MOTION TO CORRECT ERRORS

'Comes now the plaintiffs by their counsel, Steven D. Long, of the law firm of Kennerk, Dumas, Burke & Backs; and Robert Thompson of the law firm of Hoffman, Moppert & Solomon; comes also the defendants, by their counsel, Arthur W. Fruechtenicht, and Arthur H. Fruechtenicht of the Fruechtenicht & Fruechtenicht Law Office, and Robert J. Parrish of the law firm of Jackson, Parrish & Larson, and the plaintiffs' motion to correct errors heretofore filed in this Court on September 25, 1973, and submitted to the Court for hearing and determination on October 23, 1973, and the Court then having seen and inspected said motion to correct errors and the brief in support of motion, having heard argument of counsel, and being sufficiently advised in the premises, now finds:

I:

'That if the plaintiffs herein requested at the hearing on the motion for summary judgment that they be given an opportunity to amend the verification to comply with the ruling of the Court, that said motion, if made, should not be considered by this Court, for the reason that the rules of the Adams Circuit Court heretofore adopted on January 1, 1970, in conformity with the rules adopted by the Supreme Court of the State of Indiana on the same date, provides in the supplement to the amendments to the rules of the Adams Circuit Court Rule 1--C entitled Motions: 'All motions, except those of merely formal character, or to strike out testimony during trials shall be in writing and set forth the reasons thereof.' That said motion, if made, was not in writing, and was in truth and in fact, a motion in the alternative, requesting the Court to grant the plaintiffs herein leave to amend their complaint, if the Court ruled against them on the motion for summary judgment.

II:

'The Court further finds that the defendants were entitled to a summary judgment, because the verification in issue was not adequate under the law of the State of Indiana.

III:

'The Court further finds that the case law indicates to the Judge of the Adams Circuit Court that the form of the so-called verification as used in the complaint was not, and is not in common use in the State of Indiana.

IV:

'The Court further finds that the defendants' motion to dismiss the second paragraph of complaint was properly sustained for the reasons heretofore set forth in the summary judgment.

V:

'The Court further finds that Burns Indiana Statutes 7--117 entitled Actions to Contest Will or Resist Probate-Limitation-Complaint-Parties, is a special statutory remedy, which creates a right and prescribes a mode of enforcing it and that that mode must be pursued to the exclusion of all other remedies. SEE: Storms vs. Stevens (1885) (104 Ind. 46) 3 NE, Page 401

VI:

'The Court further finds it is the general rule of law...