The record-union., 1891-03-15
Appellants.
BY THE COURT.


BY THE COURT
This action was brought by the plaint-
iii against the defendants as the admins
traitors OF the estate of Emma J. Regli,
deceased. The plaintiff obtained a YER
dict and judgment against the defendants
IN their representative capacity as PRAYED
1or, and from that judgment this appeal is
taken, on the judgment roll and a bill of
exceptions.
IN brief, that Ellie Ellen, an incompetent
person, who sues by his guardian, had
been induced by his daughter, Mrs.
hegl1, to make her gift of fifteen thou
sand, eight hundred and fifty dollars,
which gift, "by reason of the premises, is
utterly void, and the conversion of the
said money was wrongful and without
consideration
The grounds which the plaintiff claims
that he relied on to sustain his contention
are that the gift was made by an in
competent person while being unduly in
fluenced.
Upon the trial, when evidence was
sought to be introduced as to the fraud
ana undue influence claimed to have been
exercised by Mrs. Regh, in her lifetime,
ana to have induced the gift, the defend
ants objected that such evidence was in
admissible under the pleadings, that no
such issue was rendered by the complaint,
and that the only issue rendered was s'that
OF mental competency to make the alleged
gift" The court agreed with the defend
ants and allowed the plaintiff at once to
amend the complaint, which was done in
few lines.
Counsel for defendants insisted on being
allowed ten days in which to answer, but
did not ask for any less number of days.
The court ruled them to an immediate
answer, which was made at once. and
ttyy ii,.iar
pears to us, this was easily done, and
without any Inconvenience. Whereupon
they moved for Il continuance on an atfi-
daVlt alleging surprise, and that they
must now adopt a different line of de-
Tense by reason of the amendment, and
stated that they expected to be able to OBJ
tain proof upon ''al1 of said new issues
now rendered which is not now at their
command" And that they needed
further time, etc. The court refused to
grant the continuance, and the trial pro-
ceeded, against the objection Of the de-
PENDANTS. 1t is claimed that the court be-
low was guilty of an abuse of discretion
i'll not allowing time to file the amend
ment to the answer, and in refusing to
grant a continuance.
AS to the first matter it is plain that the
amendment was easily made and filed as
requested, and there certainly was no
abuse of discretion in requiring this to
be done.
AS to the other point it is clear to us
from an inspection of the complaint that
1t was the intention of the pleader to
charge both that the gift was made when
Ellie Ellen was incompetent to make it,
and also that he was induced to make it
by the fraudulent acts and undue influ-
ence of Mrs. Regli. 1t is true that the
pleading is not to be commended as
model in this respect, but we think it
Cr1y t1.af A,,+- IL, i
apparently, the trial Judge had the COM
plant amended and answered, but he
was evidentlyof the opinion that there
was no surprise sprung upon the defend
ants, and we agree with him.
1t is further assigned for error that the
court erred in refusing to allow the wit
ness Schafier to testify that Ellen, since
the year 1868, and before his stroke of
paralysis, was in the habit of keeping
large sums of money in his house, and
that the witness helped Ellen to carry
$4,000 there. The purpose of this we
suppose was to show that when Mrs.
Regli, as testified to by Graham, had in
the fall Of 1856 upbraided her father with
having willed his property to her sister.
and that her sisters husband had come
up to the fathers place, after his attack of
paralysis in the spring of that year,
opened his safe and carried "down his
papers and money and they had stolen
81 ,00O," that she was speaking the truth,
and that Joseph Sanders, the husband of
her sister, had in his account of the mat
ter sworn falsely.
The evidence on this head sought to be
elected, just alluded to- as well as that the
witness had helped "Mr. Ellen to carry
$4,000 over to his house in gold coin,'
was not admissible for the reason. if no
other, that it does not appear at what
definite time it would be shown that such
mo l-o
house. 1t might have been, for all that
the evidence would have shown to the
contrary, many years before the time
when Sanders had gone to Ellen'S house
and taken away the money as he is
claimed to have DONE 1t might have
been in the year 1869, and Sanders took
what money he carried to San Francisco
in 1856.
It is further objected that the witness
was not allowed to state in contradiction
ofSanders' statement THAT he had taken
away only about S5,0S0 so in coin from
Ellen's safe in 1886, and that he had the
money in a hand satchel and the books
and papers in large satchel); ''that San
ders was weighed down by two large
pounds EACH" The witness had Just
stated, without objection, that "when
Sanders went to San Francisco, he had
two big valises about eighteen inches in
length and foot in diameter, and they
appeared to be very heavy" This was
substantially what it was proposed he
should again testify to, with a guess as to
the weight of the satchels added. We do
not think the action OF the court resulted
in prejudicial error.
It was proposed, with a view to Law a
foundation for Sanders impeachment, to
ask him whether in the month of July,
1887, in the presence of various parties.
Mr haI NO l.
indicating that Ellen believed Sanders
and his wife had taken the money of the
former. We suppose that if the witnesses
had declared, as was evidently expected
that such had not been the case the de-
PENDANTS would have introduced evidence
to show that Ellen was angry with San
ders and wife and that the cause OF this
anger was his belief that they had stolen
his money.
Admitting that the question had been
answered by Sanders in the affirmative,
or that if he had not so answered, the de-
PENDANTS could have shown, as they pro-
posed, that Ellen was angry at Sanders
and wife, and because he believed they
had stolen from him; still, the evidence
could not have aided the defendants.
There was nothing in it, or the record,
which tended to show that Ellen had any
belief as against the honesty of Sanders
and wife or anger at them on that ac-
count, except as derived from the state
ment of Mrs. Regli to him that they had
stolen money from him.
1t was already proved that he was
angry with them on that account. and
further proof of the existence of such !
anger or bias would not have helped the
defendants unless there was something to
show that it had proceeded from some
cause Independent of Mrs. Regli's state
ments to him. So that if the evidence
s.sIr IL