Maede v. Broehm

Winslow, C. J. So far as the defendant Broehm is concerned, there can be no doubt that the findings are amply justified by the evidence, and hence that the judgment must be affirmed. He frankly admits that it is the intention of himself and his brothers and sisters to comply with his father’s wishes and use their respective lots for burial purposes; and thus that the burial of his father’s body would be simply the initial interment in a family cemetery which in time would doubtless contain numerous graves. A substantial part of 566 this projected cemetery would admittedly lie within the prohibited fifteen-rod distance from the plaintiff’s house. The fact that the grave itself was a little more than fifteen rods distant from the plaintiff’s house makes no difference. The statute is aimed at the grounds as-a whole, and it is unquestionable that a considerable part of the grounds which, were here being laid out, established, and actually used for burial purposes were within the limit. As to the defendant church the evidence is not so conclusive. However we do not feel called upon to examine this question critically. It is stated in the respondent’s brief that the trustees of the church, before the case was called for argument, gave appellants’ attorneys written notice that the church did not wish to further prosecute the appeal and requesting that the same be dismissed so far as the church was concerned. This statement was repeated in substance on the oral argument, and appellants’ counsel not only did not challenge its correctness but gave the court to understand that he was in no position to do so if he would. A fugitive verified statement sent to this court by the trustees of the church is to the same effect. We cannot, of course, base official action upon this paper, and we only notice it here because it seems to place beyond doubt the statement of counsel made in court. If the church has definitely determined that it' is content with the judgment of the trial court, it does not seem that we should be justified in making an extended examination of the record for the purpose of thrusting upon the church a result which it does not desire. The judgment will therefore be affirmed as to both appellants. By the Court. — Judgment affirmed.