Village of Bellwood v. Galt (Ill.). 591 Wooley, Wagner v. (Ind. App.) 856 Village of Maumee, Jones v. (Ohio App.) 765 Worthington, Plummer v. (Ill.) 133 Vinson v. State (Ohio). Visscher, In re (N. Y.). 669 Worthington v. Sayre (Ill.).. 133 274 Vrooman, Hill v. (N. Y.) 421 Wright, City of New York v. (N. Y.).... 472 See End of Index for Tables of North Eastern Cases in State Reports Refusal of instruction should be included as basis for motion for new trial, to be reviewable on appeal. 2. Criminal law 1133. tion of it in his points and authorities presents no question. [2-4] The other two points of his petition together indicate a purpose to challenge our ruling pertaining to instruction No. 1 given by the court upon its own motion. Our conclusion then and now is that the objections then urged by appellant were not well tak en. He now submits a new and additional reason to the effect that the affidavit charged On rehearing, party cannot attack unfa-him with the violation of a statute not then vorable decision on grounds or for reasons not in existence. His contention in this respect mentioned on original presentation. 3. Criminal law 1141 (2). cannot be sustained for two reasons: (1) We know of no rule of practice permitting a party on rehearing to attack a decision unfavor Appellate courts may search record to af- able to him upon grounds or for reasons not firm, but not to reverse, judgment. mentioned in his original presentation. The rule is elementary that appellate courts, conceded to have jurisdiction of a cause, may 4. Indictment and information 87(8)-That affidavit, filed June 25, 1923, charged violation on or about February 1, 1923, of stat-search the record to affirm, but not to reute which did not take effect until March 1, Verse, a judgment. (2) The record discloses 1923, held not to show defendant convicted that the affidavit in this case was filed with of violation of statute not in existence (Act a justice of the peace of Pike township, War1923, o. 34, § 1). ren county, on June 25, 1923, and a warrant was then issued to a constable of that town That the affidavit against defendant, filed June 25, 1923, charged a violation of law (Act 1923, c. 34, § 1) on or about February 1, 1923, whereas that statute did not take effect until March 1, 1923, held not to show defendant convicted of violation of statute not in existence; there being no showing in record that evidence did not conclusively establish commission of alleged offense on a day between March 1st and June 25th. ship who, on June 26th, arrested appellant and took him before the justice. He waived examination, and was thereupon recognized to appear before the Warren Circuit Court, where, on September 14, 1923, he was tried and found guilty. The statute defining the offense of which appellant was convicted took effect March 1, 1923. The affidavit herein was filed nearly Appeal from Warren Circuit Court; Bur- four months thereafter, and, although it. charged that the offense was committed on or ton B. Berry, Judge. about February 1, 1923, still, for anything On a petition for rehearing. Petition de- disclosed by the record at bar, the evidence nied. For former opinion, see 151 N. E. 132. MYERS, C. J. [1] On a petition for a rehearing, appellant asserts that we failed to consider, his tendered instruction No. 13. Had appellant desired to question the action of the court in refusing to give this instruction, he should have included it in his motion for a new trial. Not having done so, his men may have conclusively shown the commis- For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes CHRIST V. JOVANOFF et al. (No. 12617.) murrers, etc., even though the plaintiff is not (Appellate Court of Indiana, in Banc. June 2, utory authority therefor sustains a motion 1. Courts ll. 1926.) A plaintiff, though not actually present in person or by attorney, is always in court as affects court's jurisdiction to rule on motions, demurrers, etc. 2. Venue 81-Where change of venue was granted without statutory authority in absence of and without notice to opposing party, who does not learn of such action until after term, such party on first appearance in court to which change was made may move to certify cause back. Where court without statutory authority sustains motion for change of venue, and record does not show opposing party was present in person or by attorney, or had knowledge of motion or learned of court's action during term, he may on his first appearance in court to which cause was sent move to certify it back to court from which change was improperly taken. 3. Judgment 464-Judgment granting relief against default judgment long since entered may permit it to stand as security for any judgment thereafter obtained against same party. Judgment granting relief against default judgment long since entered may permit it to stand as security for any judgment that may thereafter be recovered against same party to protect judgment creditor. Appeal from Superior Court, Porter County. MCMAHAN, J. [1] Appellee calls attention for a change of venue and sends the cause to another county, and the record does not show the opposite party was in court in person or by attorney or had knowledge that such a motion had been filed, and where there is no showing that the party learned of such action during the term, it will not be too late for such party, on his first appearance in the court to which the cause was sent on change of venue, to file a motion to certify the cause back to the county from which the change was improperly taken. The petition for a rehearing is denied. [3] But in view of the fact that a long period of time has elapsed since the judgment in the original action was rendered against appellant, that changes may have taken place in his financial condition, and that conveyances of real estate may have been or may be made which would render any judgment that might hereafter be rendered against appellant of no value, the mandate herein is modified; and the Lake superior court No. 3, in case it determines that appellant should be permitted to make a defense in the original action, shall direct that the judgment heretofore rendered in favor of appellee shall stand as security for any judgment hereafter rendered therein in favor of appellee, in order that the lien and priority of the judgment hertofore rendered on default shall not be lost or impaired. Micah R. HALSTEAD v. Abner C. PANCOAST and Elizabeth Pancoast. (No. 12455.) 1926.) Appeal from Newton Circuit Court; Chas. M. Snyder, Special Judge. Hanley & Hanley, of Rensselaer, for appel lant. Pollard, Cartwright & Wason, of Delphi, for appellees. to the fact that the record shows that Dim- (Appellate Court of Indiana, in Banc. June 1, itri Economoff, appellant's attorney in the original action, appeared in the Lake superior court on the day the motion for a change of venue was sustained, and assumes this was an appearance by appellant. This contention is based upon the assumption that Economoff was an attorney for appellant in the instant case. While Economoff was the attorney for appellant in the original action, there is nothing to indicate that he acted for appellant in the instant case or that he appeared as an attorney for appellant. The record simply shows that on the day the change of venue was granted Economoff filed his affidavit giving his version of the facts which led to the failure to file an answer in the original action wherein he had appeared as the attorney for the defendant in that case and plaintiff in the instant case. Appellant's attorneys in this cause are Sheehan & Lyddick. They are the only attorneys for appellant appearing of record in this cause. plaintiff is always in court so as to give the court jurisdiction to rule upon motions, de Α MCMAHAN, P. J. Complaint by appellant alleging breach of a covenant of warranty in a deed whereby appellees conveyed certain real the defendants, and Abner C. Pancoast, hereestate to appellant. Answers were filed by all after referred to as appellee, filed a set-off against any sum appellant might recover, and asked that he have judgment for the residue. The issues were closed, and a trial by the court resulted in a finding in favor of appellant for $7,816.88, by reason of the breach of and in favor of appellee on his set-off for $8,covenant of warranty alleged in the complaint, 910.93, and that the amount of appellant's recovery should be deducted from the amount of appellee's recovery, leaving $1,094.05 which appellee should recover from appellant. There Mass.) (152 N.E.) that jurors had read newspaper articles, trial judge was justified in refusing to make statement regarding them. was a judgment in accordance with the finding. 2. Wills 320-Where there was no evidence Appellant filed a motion for a new trial, which was overruled, and this appeal followed. The only question presented for our consideration relates to the sufficiency of the evidence to sustain the decision of the court in favor of appellee on his set-off. Where there was no evidence that jurors in will contest had read newspaper articles, which were not truthful statements of petitioner's interest, but which were published in early days of trial, trial judge was justified in refusing to make statement to jury concerning such inter est. The presiding judge is empowered to decide what to admit as a hypothetical question and what to exclude. 4. Evidence 537. In will contest, where witness was not qualified as an expert in mental diseases, it was error to admit his opinion on senile dementia. 5. Wills 53(1) — Admitting testimony describing condition of testator's household, for which he might be thought responsible, held not error. The real estate involved was a 240-acre farm in Jasper county, formerly owned by Everett Halstead, a brother of appellant, and son-in-law of appellee. Everett Halstead had given a mortgage on this land to a bank. This mortgage had been foreclosed; the land sold by the 3. Evidence 552. sheriff; and the year of redemption was about to expire. Everett Halstead and his wife had in the meantime conveyed the land to appellee in trust. On April 5, 1919, appellee, his wife joining, by warranty deed conveyed the land to appellant. Before this conveyance was made, Everett Halstead had arranged to borrow sufficient money to redeem the land from the sheriff's sale, and also to pay about $5,000 on what he was owing appellee for money advanced or loaned. It was arranged between the parties that appellee should convey the real estate to appellant, and the latter should give a mortgage on the land to secure the money so borrowed for the purpose of redemption and the After paying $5,000 to be paid to appellee. the said sum of $5,000 to appellee, there was a balance owing him by Everett Halstead of $6,050, and at the time the land was conveyed to appellant he executed his note to appellee for the sum of $6,050. This is the note referred to in the set-off. Appellant contended that he simply took the title to the land to hold it in trust for his brother, with the agreement and understanding that, in case he sold the land for a sum over and above the mortgage so given by him sufficient to pay appellee the balance due him from Everett Halstead, he was to pay such balance; that the note was given simply to show the amount due appellee from Everett Halstead; and that there was an agreement between the parties that appellant was not to be held for the amount of such note; and that the note was given without any consideration. Appellee's contention is that appellant was to pay him the balance which Everett Halstead was owing him, and that the note was given as evidence of that debt, and that the note was to be paid in accordance with its terms. The evidence upon this question is conflicting. The trial court found in favor of appellee, and there is ample evidence to sustain the finding. This being true, the judgment must be affirmed. Nothing can be gained by setting out the evidence or reviewing the same. Judgment affirmed. TAYLOR et al. v. CREELEY. TAYLOR v. UTLEY. (Supreme Judicial Court of Massachusetts. Middlesex. Aug. 9, 1926.) In will contest, admitting testimony describing condition of testator's household, for which he might be thought responsible, significant in connection with testimony of neglect of his person, held not error. 6. Trial 244(1). Trial judge cannot be compelled to single out particular matters and witnesses, and to comment on them in instructions. 7. Wills 327. In will contest, it was not error, in view of Rules of Superior Court (1923) No. 44, to refuse request for directed verdict. 8. Wills 324(2). In will contest, evidence held insufficient for jury as to lack of testamentary capacity. Exceptions from Superior Court, Middlesex County; D. A. Lourie, Judge. In the matter of the will of Thomas L. Creeley. Petitions by Amos L. Taylor and others and by Amos L. Taylor for probate of will, contested by Oscar S. Creeley and by Edward R. Utley, guardian. Verdict for contestants, and petitioners except. Exception sustained. A. P. Stone and R. H. Willard, both of Boston, for petitioners. Robert White, J. H. Vahey, and P. Mansfield, all of Boston, for respondents. WAIT, J. After a verdict of a jury finding that Thomas L. Creeley was not of sound mind when he executed his last will, the petitioners for the probate of the will present exceptions saved in the course of the trial. [1, 2] 1. Whether the case should have been taken from the jury in consequence of the apfrom jury because of newspaper articles pub-pearance of three newspaper articles published in early days of trial, which were not lished in the early days of the trial was a mattruthful statements of issues, was discretionary ter for the discretion of the judge presiding. Noble v. Mead-Morrison Manuf. Co., 237 Mass. with presiding judge. 1. Wills 320. Whether will contest should have been taken For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 1 5, 16, 129 N. E. 669. Commonwealth v. Berley v. Johnson, 188 Mass. 382, 74 N. E. 939; Car(Mass.) 150 N. E. 869. Unless clearly wrong roll v. Boston Elevated Railway, 200 Mass. his determination will not be disturbed. 527, 86 N. E. 793. In the state of the evidence There is no evidence that any juror had read when the question was put there was no the articles. They were not truthful state abuse of power in admitting it. The bill of ments of the issues of the case; and they lead exceptions does not disclose that any request easily to a false estimate of the relation of was made that the answer be excluded and Mr. Taylor to the property of the estate. If the evidence be stricken out; nor any request any juror read them and gave them credence, that the jury be instructed to disregard it, or they would seriously prejudice the petitioners. that they be instructed that no weight was to The judge may have been justified in con- be given the answer if they found in the evicluding, nevertheless, that they were not dence other facts which were not included in shown to have been prejudicial. He could the question and which in their judgment have been more emphatic in dealing with the were properly to be given consideration in matter, and have instructed the jury not to reaching a sound opinion on the testator's read any accounts of the trial and not to al- mental condition at the moment of the execulow anyone to speak to them of the case ex- tion of the will. The hypothetical question cept in the court room and in the proceedings put by the proponents to the experts called of the trial. The parties are entitled to know by them is open to the same objection. It all that is brought to the attention of the ju- may be that they preferred to take their rors bearing upon the trial which is in prog- chances upon the juror's reaction to both ress. They cannot have such knowledge if. questions, rather than to have both stricken during the trial, jurors are permitted to read out as might have happened had they made description and comment in newspaper arti- the appropriate motions. As no abuse of discles. The judge could not well comment to cretion is made out we must overrule this exthe jury upon what was said in the articles. ception. So to do would be, perhaps, to bring to the knowledge of the jury matter of which they knew nothing. Consequently, he was justified in refusing to make any statement at that time in regard to any interest of Mr. Taylor. We are unable to sustain this exception. [3] 2. The hypothetical question to the experts of the contestants was consonant with our trial practice. Anderson v. Alberstamm, 176 Mass. 87, 57 N. E. 215. The question stated and assumed as true only the facts consonant with the answer desired, and it omitted other facts which were practically admitted by the contestants and which, if stated, might well have led to a different answer. It was prejudicial to the proponents of the will. There would have been no error in excluding it. The jury should have been instructed that the answer should be given no weight as evidence of the mental condition of the testator at the date of the execution of the will unless they found all the facts therein assumed to be true, and that only those facts were true. The first part of such an instruction was given, but the last part was omitted. It is manifest that the man pictured by the question was not the man described by all the testimony, and that the expert who could honestly say that the man so pictured was not of sound mind, might have great difficulty in declaring the man disclosed by all the evidence to be unsound in mind. [4] 3. The questions to the witness Goodall with his answers were admitted improperly. The court ruled that he was not qualified as an expert in mental diseases, yet he was allowed to express an opinion on senile dementia, a mental disease. The testimony was not unimportant, since it might base an argument that senile dementia had developed from the well-established arterio-sclerosis, and had reached the point of mental unsoundness. This exception must be sustained. Hastings v. Rider, 99 Mass. 622, 624; Old Colony Trust Co. v. Di Cola, 233 Mass. 119, 124, 123 N. E. 454. [5] 4. The testimony of the witness Scarfo, admitted against the exception of the petitioners, described conditions in the household of the testator for which he might be thought to be responsible. In connection with testimony of neglect of his person, this evidence was not without significance. It could have been excluded as remote, but we cannot say the judge erred in allowing the jury to consider it. Lane v. Moore, 151 Mass. 87, 23 N. E. 828, 21 Am. St. Rep. 430. 5. We are unable to see how the testimony of Mrs. Cummings to which exception was saved had any bearing upon the mental condition of the testator in January, 1915, or upon any matter of credibility or bias. No question of undue influence exerted by this witness was before the jury. The evidence was admitted improperly. It is impossible to state in a general rule all [6, 7] 6. Exceptions were saved to the rethe elements of a legitimate hypothetical fusal of the judge to give requests numbered question. Circumstances vary so greatly and 13, 16, 25, 26, 29, 30, and 39 of the requests for so widely that what is proper in one case is instructions presented to him. The exception improper in another. The law leaves to the is waived as to request 13. The judge was presiding justice the power to decide what to not bound to give these requests. He cannot |