Collins v. Mansfield et al. ordering the distribution of the estate of Marcy, who has made an assignment of his property to Crane for the benefit to his creditors. Marcy alone was made a defendant to the error proceeding. There were several other persons who held mortgages on the property, executed by Marcy before the assignment, and who were parties in the proceeding in the probate court and in the common pleas. Any change or modification of the decree of the common pleas, would affect their interests. As has been said, neither they nor Crane, the assignee (who possibly, if he had been made a defendant, might have represented their interests), were made parties to this proceeding to reverse that decree. They were proper and necessary parties to this proceeding. The decree in the common pleas having been rendered in July, 1894, and proper parties not having been made, and it being now too late to do so, this court has no jurisdiction to reverse or modify said decree, and the case must be stricken from the docket. See Smetters v. Rainey, 14 O. S., 287; Jones v. Marsh, 30 O. S., 20; Burke v. Taylor, 45 O. S., 444; Page v. McConville, 6 Circ. Dec., 631. Thomas McDougall, Attorney for Plaintiff in Error. PLEADING-ERROR. [Warren Circuit Court, October Term, 1896.] ADAM G. COLLINS V. FRANCIS MANSFIELD ET AL. 1. QUESTION OF MISJOINDER OF PARTIES PLAINTIFF MAY BE RAISED IN THE ANSWER. When, on the face of a petition in error there appears to be a misjoinder of parties plaintiff, which could only be taken advantage of by a special demurrer, and such a demurrer is not filed, the defendant waives the objection under the provisions of section 5064, Revised Statutes, but he may properly raise the question by answer. 2. JOINDER Of Plaintiffs IN AN ACTION TO FORECLOse and RefoRM A MORTGAGE. Where several parties plaintiff file a petition asking for the foreclosure of a mortgage made by defendant, to secure the payment of notes given by him to them severally, and also asking for a reformation of the mortgage on the ground that the land intended to be mortgaged was not correctly described therein: Held, that as the petition set up a claim for the reformation of the mortgage in which the plaintiffs were directly interested therefore, they were entitled to join as plaintiffs and there was no misjoinder of parties plaintiff. 3. THE RIGHT or Cause of A PROCEEDING IN ERROR ACCRUES WHEN The right or cause of a proceeding in error accrues at the time of the rendition of the judgment or making of the final order, and under section 6723, Revised Statutes, such proceedings must be commenced within six months from that time. If commenced thereafter, the court acquires no jurisdiction of the cause and the petition should be dismissed. 4. OVERRULING MOTION FOR NEW TRIAL IS NOT A FINal Order. The overruling of a motion for a new trial is not a final order to which error can be prosecuted ERROR to the Court of Common Pleas of Warren county. SMITH, J. Owing to the fact that the original pleadings filed in the case, the judgment which it is in this case sought to review, are not before us, it is difficult to ascertain the exact facts; but we have enough data to enable us to state them substantially, aided by the statements of counsel. Warren Circuit Court. The original petition was one filed by Francis W. Mansfield and Margaret Mansfield against Mr. Collins, to foreclose a mortgage made by him to them to secure the payment of notes given by him to them severally, the notes having been given for the purchase money of the real estate conveyed by them to Collins. An answer was filed by Collins setting up various defenses, and a trial was had, and judgment was rendered for the plaintiffs. Afterwards the judgment was set aside by the court, and on the 13th day of May, 1893, an amended petition was filed by the plaintiffs. By it the plaintiffs first sought to correct and reform the mortgage which had been sued upon, on the ground that by the mistake of the parties the land intended to be mortgaged thereby was not correctly described therein, and seeking to have it corrected in this respect, and then prayed for the sale of the land for the purpose of paying the debts due to the plaintiffs severally. No demurrer to this amended petition, on the ground that there was a misjoinder of parties plaintiff or other grounds was filed by the defendant. But on August 24, 1893, he, by leave of court, filed an answer and cross-petition to this amended petition of plaintiffs, setting up varions defenses thereto, and asserting a misjoinder against them, and plaintiffs filed a reply thereto. Afterwards, on April 30, 1894, the defendant, by leave, filed an amendment to his answer, asserting that there was a misjoinder of parties plaintiff, and to this a reply was filed. On the issues raised the case was again tried, and on May 12, 1894, the court of common pleas, by its decree, reformed the mortgage as prayed for, and found the amount due to the plaintiffs severally, and ordered the real estate described in the mortgage as reformed to be sold for the payment of the amount so found to be due to the plaintiffs severally. To this judgment and order the defendant excepted, and undertook to have a bill of exceptions allowed by the court, but the same was not signed, allowed or filed in time, and therefore cannot be considered as a bill of exceptions in this case. But on the 10th day of November, 1894, the petition in error was filed in this court, alleging that there was error in the judgment of May 12, 1894, in this: that the court erred in not holding that there was a misjoinder of parties plaintiff, and in rendering a judgment thereon in their favor against the defendant; and further, that the court erred in not receiving certain evidence offered by the plaintiffs. But inasmuch as these last named errors are only shown, if at all, by the bill of exceptions, which was not allowed in time, these assignments of error cannot be considered by us. It is urged by counsel for defendants in error that we are not at liberty to consider the question whether there was a misjoinder in this case, for the reason that even if there was, as it appeared on the face of the amended petition, that it could only be taken advantage of by a special demurrer, and as such demurrer was not filed, defendant thereby waived the objection under the provisions of section 5064, Revised Statute, and could not afterwards properly raise the question by answer. This, it seems to us, is an altogether too strict construction of the statute, and directly opposed to the doctrine laid down in the case of Masters v. Freeman, 17 O. S., 323. We think, then, that the point is properly raised in the pleadings themselves, and the question for decision is, whether the plaintiffs could properly join in the amended petition. If it was simply an action to foreclose the mortgage for the separate debts of the two plaintiffs, there seems to be some conflict in the authorities. But we understand that the decision of the su preme court of Indiana holds that it may be done. See 84 Ind., 301, 3 Collins v. Mansfield et al. Blackford, 403. And the text writers seem to take the same view. See Pomeroy's Remedies and Remedial Rights, section 225, Bliss on Code Pleadings, section 100, etc., and Jones on Mortgages, section 1367. But as the amended petition sets up a claim for the reformation of the mortgage, and both plaintiffs were directly interested in having this done, we think they were entitled to join as plaintiff as to this, and there was no misjoinder of plaintiffs. After the judgment of May 12, 1894, a motion for a new trial was duly filed by the defendant, stating as grounds those set out in the original petition in error, and the additional reason that the judgment was against the weight of the evidence. This motion was not disposed of when the original petition in error was filed, nor was it done until April 7, 1896. This was nearly two years after the rendition of the decree complained of. Defendant excepted to the overruling of the motion, and in due time had a bill of exceptions allowed containing all of the evidence with the rulings of the court as to the admission of evidence, and on August 20, 1896, filed what is called a supplemental petition in error, asking a reversal of the judgment of May 12, 1894, for the reasons assigned therein, for error in overruling the motion for a new trial and for receiving incompetent evidence at the trial. We think, then, that plaintiffs in error can take nothing under this petition in error. It is clearly and explicitly held in the case of Young v. Schallenberger, 53 O. S., 291, that the right or cause of the proceeding in error accrues at the time of the rendition of the judgment or making of the final order, and under section 6723, Revised Statutes, such proceedings must be commenced within six months from that time. If commenced thereafter, the court acquires no jurisdiction of the cause, and the petition should be dismissed, and that the overruling of a motion for a new trial is not a final order to which error can be prosecuted. The fact that the petition in error was filed two years before and within six months after the rendition of the judgment complained of, one of the grounds which, raised by the record, we have held not to be well taken, and the others of which were not presented (as was necessary) by a bill of exceptions, will not avail to enable the plaintiff in error, when a motion for a new trial has been overruled more than six months after the rendition of the judgment complained of, in effect to file a new petition in error, and raise questions settled by the judgment rendered more than six months before the filing of the supplemental petition in error. This supplemental petition and bill of exceptions will therefore be stricken from the docket, and the judgment of the common pleas affirmed. A. G. Collins, for Plaintiff in Error. Morrill & Jordan, for Defendants in Error. Butler Circuit Court. NEW TRIAL-WILLS-EVIDENCE. WILLIAM D. OUSLEY V. ROBERT B. WITHERON, ET AL. 1. COUNTER Affidavits may be FILED UNDER SECTION 5308, REVISED STATUTES Where plaintiff files affidavits in support of a motion for a new trial, based on the ground of newly discovered evidence, it is not error for the court to allow affidavits to be filed on behalf of defendant in answer to those filed by plaintiff. This is provided for by section 5308, Revised Statutes. 2 Burden of PROOF IN AN ACTION TO Contest a WILL. Under the provisions of our statute, which provides that in an action brought to contest a will, the order of the probate shall be prima facie evidence of the due attestation, execution and validity of the will, where offered by those claiming under it, and does not impose upon them the necessity of giving some reasonable explanation of any unnatural provision that may appear in the will, but the burden of proof is upon the contesting party, to show that such will was the offspring of mental defect, obliquity or perversion. SMITH, J. First-The trial court did not err in allowing affidavits to be filed on behalf of the defendants below, in answer to those filed by plaintiff in support of his motion for a new trial, based on the ground of newly discovered evidence. This is especially provided for by section 5308, Revised Statutes. Second-At the trial of the case, after the general charge of the court to the jury, and to which no exceptions were taken, the plaintiff asked the court to give two several special charges to the jury. The requests were refused, and proper exceptions were taken. The first charge so asked and refused was as follows: "If the jury find that the wlll of Samuel P. Witheron is unreasonable in its provisions, and inconsistent with the duties of the testator with reference to his property and family, this of itself will impose upon those claiming under the will the necessity of giving some reasonable explanation of the unnatural character of the will, or at least, of showing that its character is not the offspring of mental defect, obliquity or perversion." It may be conceded, we suppose, that the evidence offered in this case tended to show that the will of the testator, the validity of which was attacked in the case, was unreasonable in its provisions, and inconsistent with the duties of the testator to his family and property, in this, that while he gave a considerable amount of property to his three children and heirs at law, he gave nothing to this grandson, the only son of a deceased daughter, and it may be, without what would seem to people generally, a good reason therefor. This was a matter perfectly proper to be considered by the jury, in connection with the other evidence offered in the case, as tending to throw light upon the question whether at the time of the execution of the will the testator was of sound and disposing mind and memory, and acted freely and voluntarily, and was not under any restraint; for these were the questions of controversy in the case; and on these issues such evidence might be entitled to great weight. But under the provisions of our statute, which provides that on the trial of such issues, the order of the probate shall be prima facie evidence of the due attestation, execution and validity of the will, Ousley v. Witheron, et al. where offered by those upholding it, we are of the opinion that the court in this case could not properly say to the jury, as requested, that if they found as stated, "that this of itself will impose upon those claiming under the will, the necessity of giving some reasonable explanation of the unnatural character of the will, or at least of showing that its character is not the offspring of mental defect, obliquity or perverson." If the jury was to understand from this statement, as they might well do, that if those claiming under this will had not done this, that the verdict should be against the will, it would be manifestly wrong. But in any event, the charge as asked imposed a burden upon them. They had made a prima facie case by the introduction of the will and order of pro bate, and it was incumbent on the plaintiff himself, before he was titled to a verdict, to show that the will was "the offspring of mental defect, obliquity or perversion" if it was claimed by him to be invalid for this cause. The burden imposed by the law to show this could not be shifted from him and the defendants be bound to prove that this was not the case. The second charge asked for and refused was this: "If the jury find that John L. Witheron, who was benefited by the will, made as it is, had a controlliug agency in inducing Samuel P. Witheron not to give Wm. D. Ousley an equal share with the other heirs, this must be regarded as a very suspicious circumstance, and one requiring the fullest explanation." But, while refusing to give the charge in the language asked, the court said to the jury concerning it: "The court, however, will say, that circumstance, like any other circumstance which shows an unequal distribution of this property, or any unusual influence exerted, are such circumstances as the jury may take into consideration in making up their minds as to whether or not there was any unsoundness of mind, or any undue influence. We are of the opinion that the charge, as asked for, ought not to have been given. The jury might have found that John L. Witheron, who was benefited by the will as it stood, had a controlling agency in inducing his father not to give the plaintiff an equal share with the other heirs, as for instance by convincing him fairly that he was not entitled to such a share, for the reason, for instance, that his, the plaintiff's mother, had received a full share in her life time, or that he was rich and did not need it, while the others were poor. If those were the facts, (of which we know nothing), it would not be a very suspicious circumstance, "and requiring the fullest explanation, " whatever this may mean. The charge as asked for was altogether too indefinite, and on its face asked rather for a statement of fact from the court, than one of law. And in our opinion the trial judge, in his statement on this point, stated strongly enough how the matter should be considered and weighed by the jury. The judgment will be affirmed. Thos. Millikin, for Plaintiff in Error. A. F. Hume and Edgar A. Belden, for Defendant in Error. |