Spehn v. Huebschen

Winslow, J. A motion to dismiss the appeal was made by respondent on the ground that the appeal was taken from an order for judgment, and not from the judgment. It seems that the motion for judgment was heard at a term of the court held at Waukesha, the same being a special term for Ozaukee county, on the 18th of March, 1891, and an order then made that the contestant have judgment that the propounded will “ is not the will of the deceased, that the same is not admitted to probate, and that the decree of the county court admitting the said will to probate is reversed,” and that the case be remitted to the county court for further proceedings. This order was filed at Ozaukee March 27, 1891, and on the same day a formal judgment was made and signed by the clerk, and filed, in which it is adjudged that the propounded will is not the will of deceased, that the same is not admitted to probate, and that the decree of the county court is reversed. The notice of appeal is from the order entered on the 27th day of March, 1891, in favor of contestant and against the proponents, and the undertaking on appeal refers to an order made at Waukesha March 18,1891. It will be seen that the “ order for judgment” contains all the effective words of a judgment. We should treat it as an effective judgment itself if it stood alone. In this view of it, we should not feel justified in dismissing the appeal. The appellants’ brief contains no statement of errors relied on, as required by Bule IX of the rules of this court. The brief is largely devoted to a review of the evidence, apparently with a view of convincing this court that the findings of fact made by the circuit court are not supported 316 by the testimony. We have carefully read the. case, and are fully satisfied that there was sufficient evidence on which to base the findings. A review of it would simply incumber the reports to no purpose. It is claimed that an hypothetical question put to certain experts, whereby they were required to express an opinion as to the sanity of deceased when the will was made, did not correctly state the facts in proof. An examination of the case convinces us that there was evidence tending to support all of the facts recited in the question. The evidence tending to show .undue influence was principally circumstantial, but none the less persuasive. We have found no other points which deserve discussion. By the Court. — -Judgment affirmed.