Ruby v. Downs

Given, C. J. 2 I. On the third day of January, 1900, plaintiffs filed ■ in this court what is entitled “Appellee’s Amendment to Abstract.” This shows that on April 10, 1900, defendants moved to strike said amendment to the petition filed March 29, 1899, because filed without leave, and because it pertains entirely to matters arising after the death of Mrs. Wharton, which matters are not involved in this suit. This motion was sustained, to which plaintiffs excepted. This amendment to the abstract further shows that on April 12, 1899, plaintiffs moved the court to direct the referee, pending sale and appeal, to take charge of and to rent the land to defendants or to other parties, and that said motion was overruled, and that plaintiffs excepted. It shows that on the thirteenth day of April, 1899, plaintiffs filed a petition setting out the matters as theretofore alleged, and asking again that the referee be authorized to rent the land. This motion was overruled and plaintiffs ex-on six different grounds, to strike this “petition for an orcepted. A bill of exceptions shows that defendants moved, der. Following this are what purports to be corrections of defendants’ abstract as to the evidence, then defendants’ notice of appeal, and then a second notice of appeal by the defendants from all orders, rulings, and judgments entered at the April term, which last notice was served August 18, [578] 1899. On January 25th plaintiffs filed “Appellees’ Second Amendment to Abstract,” setting out some of the evidence. It appears that the case was heard and decree rendered by his honor, Judge Dewey, and that what followed was before his honor, Judge Scott. Defendants move to strike appellees’ amendment to abstract filed January 3, 1900, upon the grounds that the orders appealed from are no part of the case, and1 that the abstract was not filed in time, namely, 30 days before the January, 1900, term. Plaintiffs’ counsel seek to excuse this delay by showing an arrangement for an extension of time with defendants’ counsel, but this is denied. There is an effort to give this abstract the character of an amendment to the defendants’ abstract,'but, plainly, its purpose is to bring before us on plaintiff’s appeal the rulings that follow the decree. As this abstract was not filed within the time required, defendants’ motion to strike the same is sustained, and the defendants’ motion to affirm on plaintiffs’ appeal as to the orders and rulings made after the decree was rendered is also sustained. 3 II. This brings us to consider the case as it stood at the time the decree was rendered, and first as to defendants’ claim of equitable ownership of the land. The evidence is voluminous, but the following facts will be sufficient to show the reasons for otrr conclusion: Mrs. Wharton’s children were all living away from her, except these defendants, who remained with her on the farm in question, and by industriously cultivating the farm provided a support for. the three, and for needed improvements on the farm. It was certainly very commendable in them to thus kindly care for their aged mother. Their possession of the farm under these circumstances creates no presumption of ownership. It is said that as a return for their kindness their mother agreed to give them by deed or by will, but she never did so, and the courts cannot make the gift for her. It is sufficient to say that the plaintiffs’ have failed to estab [579] lisb their claim of equitable ownership in the land1 by that clear and convincing proof which the law requires- 4 III. As to the accounting, it may be that if plaintiffs had claimed that rents accruing after the death of'TVTrs. Wharton should be considered in the accounting, and defendants had claimed that for the support of their mothep, in time, these claims should have been considered, but this we do not determine. Neither of these claims was made until after the case had been fully submitted. It was discretionary with the court whether the case should be opened for further claims and evidence. These claims were not newly discovered, and there was no abuse of discretion in refusing to open the case to them. The accounting as made by the court of the matters before it is eminently full, fair, and just, as is also the decree which it rendered. — affirmed. '