Dodge v. O'Dell's Estate

Dodge, J. Substantially but three assignments of error are presented: 1. That the finding in the special verdict that the plaintiff jointly participated with his mother, Harriet S. Dodge, in furnishing the support upon which liability of the estate is predicated, is wholly unsupported by the evidence. We cannot agree with this contention. The evidence of the [299] mutual participation by the plaintiff and his mother in maintaining the household wherein the deceased was supported was sufficient to carry the question to the jury. 2. It is contended that, instead of the question submitted by the court, there should have been put that requested by the appellant, as quoted at length in the statement of facts. We are persuaded that the question submitted was much more intelligible, and more likely to secure the conclusion of the jury upon the material fact, than that framed by the appellant, which is involved and would be well-nigh unintelligible to the average layman. The form of questions, as has been many times said, is very largely in the discretion of the court; and, if that adopted fairly calls for the conclusion of the jury upon the material issue of fact, the dis'cretion of the court should not be disturbed. Knowlton v. Milwaukee City R. Co. 59 Wis. 278, 285; Raymond v. Keseberg, 98 Wis. 317, 320. It may further be suggested that' most of the elements of the question requested are legal conclusions. If in fact plaintiff and his mother jointly participated in furnishing the support during the period covered by the claim, all these unities in the ownership of the indebtedness for such support result by operation of law. That indebtedness arises by implication of a contract to pay. If the service was joint, the contract will be implied to pay them jointly, and unit}'- of title, of possession, and of interest in that single indebtedness cannot fail to exist. The time of the service of each was the same, and their rights in the indebtedness therefore commenced at the same time. The third question fairly left to the jury the only controverted question of fact, and from their conclusion thereon, and from the undisputed facts, must necessarily result all the necessary “unities.” Some criticism is made by appellant of the phraseology of certain other questions in the special verdict, but, no excep [300] tions thereto having been taken at the trial, we cannot consider them. 3. The appellant assigns as error the refusal to admit in evidence certain records of the county court in the O’Dell estate, claiming that such records would have shown this claim to be barred for the reason that it was not presented within the time limited by a certain order for the presentation of claims under the Failinger administration, which respondent claims was wholly without jurisdiction. The appellant made the tender of all the papers en masse, “ for the purpose of showing the proceedings under the Failinger administration,” but has failed to bring up in the bill of exceptions either the contents in full of those papers or any information with reference thereto, so that we cannot tell whether they were of the character claimed for them.Even if we assume that jurisdiction existed to do so, we cannot know that any order limiting time to hear claims was made or published, or that any act was done which would have barred this claim, nor that any of the pajjers contained any matter relevant to such considerations, so that they should have been received. Error must be made to affirmatively appear, and, without some authentic information as to the contents of the papers so offered, we cannot hold that any error was committed in excluding them. Slauson v. Goodrich Transp. Co. 99 Wis. 20. "We cannot discover any prejudice to the appellant from, the admission of two or three items of evidence tending generally to the effect that Mrs. O’Dell had trouble with relatives with whom she had resided just prior to the commencement of her residence with the plaintiff and his mother. The testimony seems not to have been relevant or material, but we are forbidden to reverse for errors by which the appellant has not been prejudiced. Sec. 2829, Stats. 1898. A supplemental case printed by respondent is made up [301] of matter in no wise essential to the consideration of any of the errors assigned. It was unnecessary, and the expense of printing it should not be allowed him in taxing costs. By the Oowt. — Judgment affirmed.