Chapman v. Jones

GRAIL, P. J. This is an appeal from a judgment on the merits in favor of the proponents of a will and against the contestant. Before the trial of the contest was ended, the contestant moved the court to dismiss without prejudice and he also announced in open court that he had dismissed the contest and had abandoned it. His contention on appeal is that the trial court should have treated the contest as dismissed and therefore the judgment on the merits was erroneous.

A petition was filed in the superior court to probate the will of the deceased, and proper notice of the hearing of said petition and the time and place thereof was given as required by law. Prior to the hearing of said petition the contestant herein filed his written contest objecting to the probate of the will upon several grounds. The answer of the surviving husband, Frank Matthiessen, in addition to denying the allegations of the contest, set forth an additional ground for the admission of the will to probate to the effect that the decedent had entered into a written contract with him to make the will, and asked as affirmative relief that the will be admitted to probate as the last will and testament of deceased, and for costs.

The trial of the contest came on for hearing. The contestant proceeded to introduce evidence in support of the con[325]test. Two days and a portion of the third day were consumed by the cross-examination of the surviving husband. Another witness called by the contestant was an attorney for the proponents of the will. There is considerable dispute between the parties as to the legal effect of what took place in open court while this witness was still on the stand and before the case was submitted for decision, and for that reason we deem it necessary to set it out as briefly as we may. “Mr. Bowring: If the court please, at this time, ... the contestant is dismissing this contest without prejudice. . . . Although I regret consuming the time of the court and the time of counsel and witnesses, these are the instructions that I have received; so I make that motion at this time, that the contest be dismissed without prejudice. . . . The Court: ... I feel that, inasmuch as the motion is made to the court, and because the court is firmly of the opinion that the contest is being dismissed because the contestant feels that his case thus far has shown no bottom in law or in fact, that the motion made is an imposition on the court. I am going to deny it. . . . Mr. Bowring: I might state to the, court that the principal reason, of course; that my client has come to the conclusion that he has, is that he feels that his case has been prejudged and that before he has had an opportunity to present his case this court has taken the position that amounts to a determination more or less in advance that upon his theory of the case that he cannot prevail. Now, under these circumstances I think that the actor in any case has a right to abandon the case, either permanently or to abandon it with the idea that if upon further investigation and further preparation, he feels and is advised, that he can present a stronger ease, that he may wish to resubmit it to the court. . . . The Court: . . . I hold the statements are unwarranted, and are a slander on the court. The only possible basis in fact for such statements would be the remarks which the court made to both counsel, when both counsel were called to the bench yesterday, and the reporter was asked to step up to the bench. At that time the court informed you, Mr. Bowring, if I recollect correctly, that we were getting no place fast. . . . Now, you have wasted, if this motion were granted, two days of this court’s time, and the court is not going to allow it. You may proceed with the case.”