The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1892-05-11
MUST PRODUCE THAT WILL
While the Mcdonald Contestants Need
Not Elect Their Theory of Trial.
Both Rulings of the Circuit Court Against
the Widow-Suing for Their Wages
Panhandle Injunction Stands.

In the Circuit Court. yesterday morning.
Judge Brown ruled on the two motions in
the Mcdonald will case, both rulings being
in favor of the plaintiffs and against
Mrs. Mcdonald. There are" said Judge
Brown, In making his ruling. two motions
before the court which have been very
ably argued and proofs have been furnished
the court These are questions which have
never been presented directly to our Su-
preme Court for decision and this court has
first motion is TO compel the plaintiffs TO
enjoyed the perusal of the points made. The
elect upon which theory they will 60 to
trial The contest of will IS under special
statute 2596. This the court read.I The
complaint proceeds upon the theory OF un-
due influence and also that the first page
of the will has boen spoliated and another
page, different from the one executed. put
in It's place. The last page remaining the
same as il was at the time OF the execution
of the will. These two points are in one
paragraph and the defendant claims that
they are inconsistent with each other. and
that under the rules of scientific
and logical pleading the plaintiff can
not proceed upon both. but must
elect upon which theory they will 90 to
trial. The plaintiffs claim that this is a
proceeding not under tho code. but under
the special statute. and that in this special
statute they have the right to declare upon
all tine grounds set ont for the contest OF
the will In their petition. ODd which need
not be in different paragraphs. but III a
single paragraph. They say that If there
Is anything about this it is a fault OF the
Legislature, because IL allows them 80 TO
proceed. The court here read from the
l25th Indiana Jadge Odds giving the opin-
ION for that court in the case of Milton
Copeland, ST.. where the plaintiffs had set
forth that Copeland was of unsound mind,
and that his will was unduiy executed
Undue execution and uns0undness OF
mind are TO a certain extent inconsistent.
1t seems under this decision and others,
which have sustained four or five different
grounds in q petition. that the ruling
should be that the plaintiffs can proceed
without being compelled TO elect, upon
which theory they will proceed" THE
motion TO elect upon which theory the
plaintiffs would proceed. was Overruled.
and thirty days given to file EXCEPTIONS
The court continuing said: The plaintiffs
obtained an order from this court to exam
me Mrs. Mcdonald under oath, and it is
stated by counsel that upon that examlna-
tion she admitted she had copy OF the
will. given her by senator Mcdonald at
interrogsting her did not ask her to pro-
duce the will or to show 1t 10 them at the
time. Now the plaintiffs have filed mo-
ton and ask for an inspection of this copy.
which the defendant claims the Senator
gave her, both as to mechanical construc-
stion and material used, as we'll as to the
subject T. matter. The defendants claim they
have no right TO this copy. that 1t belongs
TO her and Is her evidence, given for her
protection. and that the court can not IN
terfere and give them an inspection or al
low them to take copy. They refer TO
several English cases and TO Taylor on Evil
urf has nof
passed upon this point. In the Seventeenth
Indiana IL was held that Sections AID and
$50 have reference to evidence that the
party may Introduce where there is any
paper mentioned In the pleading, and in the
Thirty-ninth Indiana 1T Is held that an al
fidavit setting out that they want the
books of an insurance company. all papers
and policies and introduce an order TO that
effect, that that was too broad and would
not be sustained. but they would have to
elect which paper they would have.
THE question is whether our code would
be construed the same as this Engilsh
judicature act. Not being able to find any
thing l have looked to New York. They
have a revised statute which corresponds
to the English judicature act. and under that
the Supreme Court has held that IN order
to enable q party moving for an examina-
ton of paper it must be evidence ex-
olusively for them or jointly. Here the
court read from Waite's Practice. If they
proceed upon the theory have allowed
them in my ruling not to elect they could
have all interest in the production Of the
copy, even under the rule as laid down by
Taylor. 1t seems to the court that the
plaintiff would be entitled TO an inspection
of that copy. AS TO the inspection, of course
il cannot be brought into court and filed
with the papers. | find the ordinary rule
to be that an inspection 1 allowed at the
Office of the solicitor of the party who Is
10 produce the paper. The plaintiff may
have an inspection of the paper with the
right to take q COPY, but il shall not 90 ont
of the office"
Mr. Cropsey-What want is an IN
spection ano we don't want to be interfered
with by anybody.
Mr. Fishback-If there is anv interfer
ence you can bring the courts attention 20
II.
The Court think that is all that is
necessary.
Mr.. Fishback-Mr Harris associate
counsel for Mrs. McDonald) is out of the
city and will be back Friday. We Will af-
ford them On opportunity TO see the copy
as soon as he gets back.
Mr.. Kappes, one of Mrs. Mcdonald cOun-
sci. asked time to file a bill OF exceptions
to the overruled motions. which was
granted.
Panhandle Injunction Stands.