Davis v. Davis

¶1This is an -appeal by the defendant from a judgment in favor of the plaintiff and from the order denying a *428new trial. This is the second appeal in this action. The former decision is reported in 24 S. D. 474, 124 N. W. 715. The facts are so fully stated in that opinion that it is not necessary to repeat them in this opinion, and it must suffice to say that the action was instituted by the plaintiff to recover a quarter section of land in Clark county of which the plaintiff claims to- be the owner and entitled to possession as the only son and heir of Andrew J. Davis, deceased. . The case was tried to- the court without a jury, and the court’s findings are as follows: “(1) The plaintiff is the son and only child of Andrew J. Davis, deceased, and the said Andrew J. Davis, deceased, left no surviving wife. (2) The defendant is the brother of said Andrew J. Davis, deceased, and the uncle of the plaintiff. (3) On the 1st day of September, 1903, the said Andrew J. Davis was the owner in fee simple absolute of all the real property situated in the county of Clark and state of South Dakota, and described as follows, to-wit, the S. F- Y of section 17 in township- 116 N. of range 59 W. of the Fifth Principal Meridian, containing 160 acres, and while such owner and on such day executed, acknowledged, and delivered, as the party of the first part therein, to the defendant, as the party of the second part therein, a quitclaim deed of the said real property, and the said deed was on September 30, 1903, recorded in the office of the register of deeds of this said county of Clark in Book R of the deed records of the said office on page 157 thereof. (4) On the said 1st day of September, 1903, and at the time of the making of said quitclaim deed, the said Andrew J. Davis was of unsound mind, and was not mentally competent to understand in a reasonable manner the nature and effect of the act in which he was then engaged, to-wit, the making of said deed, and was not capable of understanding and comprehending a transaction involving the making of a quit-claim deed of said real property by himself to the defendant. (5) No consideration was received by the said Andrew J. Davis, nor was any given by the -defendant for the making of the said quitclaim deed, and the same was wholly without consideration. (6) The defendant knew, at the time of the making of that quitclaim deed, the facts stated in the fourth of these findings. (7) the plain*429tiff has not been guilty of laches in the bringing of this action. (8) On March 4, 1904, the 'said Andrew J. Davis died without disposing of his property by will.”

¶2From these findings the court concludes as a matter of law as follows: “ (1) The plaintiff is the owner in fee simple absolute of the said real property and entitled to the possession thereof. (2) The defendant has no title to, interest in, nor claim upon said real property, and the said quitclaim deed should be canceled of record by order and judgment of this court, herein. (3) The plaintiff is entitled to judgment in his favor herein ordering and directing the register of deeds of this said county of Clark to cancel said quitclaim deed upon the record thereof in said office, and adjudging and declaring him the owner in fee simple absolute of the said real property and of the whole thereof, and adjudging and declaring that the defendant has neither title to, nor interest in, nor claim upon said real property, or any part thereof, and to recover and have taxed in said judgment against the defendant the plaintiff’s costs herein.”

¶3The only questions presented and argued on this appeal are that the court erred in admitting the record of the circuit court of Jewell county, Kans., bearing date of June 17, 1904; that the court erred in permitting the plaintiff to amend a stipulation entered into on the trial; that the court erred in overruling defendant’s objections to the testimony of certain witnesses giving their opinions as to the insanity of the deceased without having stated the facts upon which their opinions were based; and that the court’s findings are not sustained by the evidence.

¶4[1] On the first trial of the case the record of the circuit court of Jewell county, Kan., was excluded; but this court held on the appeal from the judgment entered on the former trial that this record should have been admitted for the purpose for which it was offered, viz., to show that that court held in an action between the same parties that Andrew J. Davis, the deceased, was insane at the time -he executed a certain deed to the defendant for lands in Kansas, in 1902, as presumptive evidence that the said Andrew J. Davis was insane at the time he executed the deed in controversy in this action on September 1, 1903, but that *430said presumption was a rebuttable presumption and not conclusive as against the defendant. The decision of this court on .the former -appeal that the record of the Kansas court was admissible in evidence constitutes the law of the case and will not again be considered .on this appeal. Manganese Steel Safe Co. v. First State Bank of Leola, 134 N. W. 886; Osborne v. Stringham, 4 S. D. 593, 57 N. W. 776; Bank v. Gilman, 3 S. D. 170, 52 N. W. 869, 44 Am. St. Rep. 782, and cases therein cited.'

¶5[2,3] Upon the second trial the plaintiff entered into the following stipulation: “It is stipulated that the testimony taken at the former trial of this case on the nth day of December, 1907, of John B. Davis, -both the direct and redirect and cross and recross examinations, and the testimony taken at said former trial ■of George W. Davis (whose testimony is marked as George O. Davis in the transcript), both direct and cross and redirect and recfoss' examinations, and testimony of M. B. Davis, both direct and cross and redirect and recross examinations, and’the whole of said testimony shall be taken and considered as the testimony of .said witnesses at this trial with the same force arid effect as delivered on the witness stand. It is further agreed that the plaintiff may rebut and ask impeaching questions as to the new matter taken in the depositions since the former trial, and the defendant may rebut and ask impeaching questions as to the new matter taken since the former trial, that the testimony when so- completed shall be the testimony of this case.”

¶6After the submission of said case to the court by both parties, the plaintiff served notice of motion “for an order in said cause requiring that the defendant in this case permit to be inserted in the stipulation submitting the testimony of John B. Davis, George W. Davis, and Michael B. Davis, that the testimony of each of ■said witnesses be submitted subject to all objections and exceptions taken at the former trial and shown upon the record of their tesimony in the court stenographer’s report thereof, and that such objections and exceptions to the testimony of each of said witnesses shall bé considered as if the same was made upon this trial and shall be ruled upon by the court at this trial as if offered new therein.” The ground's of said motion were: “That the pro*431visions for considering the objections and exceptions were left out of said stipulation by accident, inadvertence, surprise, and mistake on the part of plaintiff’s counsel.” The motion was made upon the stenographer’s minutes, all the 'files and records in the case, and upon the affidavit of C. G. Sherwood, counsel for 'the plaintiff. In this he states that upon an examination of the stipulation he found that special provisions for the consideration of the objections and exceptions taken on -the former trial were not in said stipulation as he believed they were when the stipulation was made, and1 as he intended they should be,'and as the agreement with counsel for defendant to submit the testimony of these three witnesses in the transcript of the'former trial stipulated; that they were inadvertently omitted from the stipulation by accident or mistake on the part of the plaintiff’s counsel; and that, unless said objections and exceptions to said record testimony were considered and allowed, there would be brought into the record the testimony of Michael B. Davis as to transactions and conversations with Andrew J. Davis, the deceased, held inadmissible by this court on the former appeal, and which the plaintiff never intended to stipulate should be admitted in evidence in this action except with the objections and exceptions. The. motion of the plaintiff was resisted and affidavits filed on the part of the defendant and rebuttal affidavit on the part of the plaintiff’s attorney; The court,however, on due consideration, made the following ruling: “Unless counsel can at this time enter into a new stipulation, which will express their real intention, the taking of evidence in that case will be reopened, and the court will hear further' evidence at the next regular term of court fo'r Clark county, and the case will stand •open for the hearing of such further evidence.” And thereafter on the same day the stipulation made September 23, 191O', was amended as suggested in tlie motion.

¶7It is contended by the appellant that the original stipulation ■contained no reservation of incompetent testimony, n'or was the said testimony received subject to any • objections or exceptions taken at the former trial, ánd that the case was submitted by both parties on September 23, I910, and no" motion was made" for1 the correction of the stipulation until October 4, I910, and' that the *432court therefore abused its discretion in making its order permitting the amendment of said stipulation after the trial of the action.

¶8We are of the opinion that there was no- abuse of discretion in permitting the stipulation to be amended in such manner as to show all the objections of counsel to the admission of the evidence of the witnesses, rulings of the court, and exceptions taken thereto. It is quite clear from the affidavit of plaintiff’s counsel that he understood in entering into the stipulation that the objections, rulings of the court, and exceptions taken to the same on the former trial were to be considered in the stipulation, which was hurriedly made in open court and taken down by the stenographer on the trial, and that he had no intention of waiving; the objections and exceptions taken to such evidence at the former trial, and that such objections were inadvertently omitted from the stipulation.

¶9It will be observed in the opinion on the former appeal that the objections and exceptions taken to the ruling of the trial court were sustained and much of the evidence held to- be improperly admitted, and it cannot be presumed that counsel for the plaintiff intended to waive these objections and exceptions in making the stipulation referred to.

¶10We are also of the opinion that, under the terms of the stipulation, the testimony of these witnesses taken at the former trial was to be admitted subject to the objections and exceptions-taken to it on the former trial.

¶11The plaintiff’s motion was not to b’e relieved from the stipulation, but to have it so amended as to conform to the real stipulation as intended by the parties at the time it ■ was made. In-either view we are of the opinion that the court committed no-abuse of discretion in permitting the same to be amended to conform to the real intention of the parties in making -the same.

¶12[4] It is further contended by the appellant that the witnesses-on the part of the plaintiff failed to state facts and circumstances-upon which they based their opinion, that Andrew J. Davis was-insane, or that he was mentally incompetent to execute the deed’ in controversy, at the time it was executed. But an examination *433of the evidence shows that the witnesses did in fact state facts and circumstances quite fully upon which they, based their opinions, and the case comes within the rule laid down in State v. Leehman, 2 S. D. 171, 49 N. W. 3, in which this court said: “If the question presented and the ruling of the -court were as indicated by counsel’s brief, it would probably be held to be error, for it seems to be now well settled in nearly all the states that a nonexpert witness will be allowed to express his opinion as -to the mental condition of a person after having stated the facts upon which such opinion is based. People v. Conroy, 97 N. Y. 62; State v. Pennyman, 68 Iowa, 216, 26 N. W. 82; Territory v. Hart (7 Mont. 489), 17 Pac. 718; Webb v. State, 5 Tex. App. 608; Hardy v. Merrill, 56 N. H. 227 (22 Am. Rep. 441); State v. Klinger, 46 Mo. 228.”

¶13[5] The evidence of a large number of witnesses was given by both plaintiff and -defendant as to the mental condition of said Andrew J. Davis at the time he executed the deed in controversy to the defendant, and, as we have seen, the court finds from this evidence that the said Andrew J. Davis was mentally incompetent to execute the said deed at the time it was executed. The evidence in the case i-s very voluminous and conflicting, and from an examination of the same we are unable to say that there is a preponderance of evidence in favor of the defendant. No useful purpose would be served by reproducing the testimony of the witnesses in this’ opinion.

¶14The judgment of the Circuit Court and order denying-a new trial are affirmed.