Stewart v. Oneal , 150 C.C.A. 547 ( 1916 )

On Petition for Rehearing.

Appellee has not apprehended the exact and only ground upon which we have decided against him, and the sole necessity for making response to his petition is, if possible, to render it plain to him what that ground is. This consideration alone makes it worth while that we say something further. In doing so we do not admit that the opinion is not clear on this point.

The appellants are in possession of the property in controversy, and appellee seeks to recover it from them. The question in the case is whether he is the owner, and not whether they are the owners, thereof. We put it this way, not because of any doubt as to whether they are the owners, but that this\ question may be viewed aright. Appellee claims to be the owner by virtue of the probate, February 14, 1843, of the document of date November 28, 1842, as the last will of Elmor Williams. If that probate is still in force, he is the owner. We conceded as much in the opinion. It is equally true that, if it is not still in force, he is not the owner. Appellee has not contended otherwise. His case depends on the truth of the proposition that it is still in force.

The probate was set aside and held for naught Decembér 30, 1843, •by the decree of the commofa pleas court. This decree was a binding decree as to appellee, as well as to the parties to the suit in which it was entered. And, if it is still in force, as it was from the time it was entered until January 15, 1844, when the appeal to the Supreme Court was perfected, the probate is not still in force, and the appellee is not the owner. As to these two propositions appellee has not contended otherwise.

This decree is now in force, as it was then, and it has been so in force ever since April, 1845. This is so because at that time the appeal therefrom was dismissed. As the sole effect of the appeal was to suspend the decree during its pendency and until a decree in the Supreme Court, a dismissal thereof before such a decree put it in force thereafter, just as it woúld have been had no appeal been taken.

[5] This was to no extent affected by the claims of appellee, to wit, that his mother and he were no parties to the agreement and deeds pursuant to which the dismissal was made, and' that they were a fraud on them. The appeal was in. fact dismissed, though wrongly so, if he is right. The sole possible effect of its having been wrongly dismissed is, either that the appeal is still pending, or that appellee is entitled to have the dismissal set aside and appeal reinstated. It did not have the effect of vacating the decree. We have yet to learn that the wrongful dismissal of an appeal vacates the decree appealed from. That the appeal may be still pending, or that appellee is entitled to have the dismissal set aside and the appeal reinstated, each of which is far-fetched, and which we do not concede, does not render the probate in force, so that the appellee can assert that he is the owner under it.

That the manner in which the dismissal of the appeal was brought about did not vacate the decree was practically conceded by the appellee. This he did by the position which he took that the appeal itself vacated the decree. Of course, if this was the éffect of the appeal, the dismissal thereof did not reinstate it, and the decree has not been in existence, much less in force, since it was taken; whereas, on the other hand, the probate has been in force since the dismissal of the appeal, and appellee is the owner. It was here that we differed with the appellee. A careful consideration of the statutes of Ohio and the decisions of the Supreme Court of Ohio drove us to the conclusion that the effect of the appeal was to suspend, and not to vacate, the decree.

The exact and only ground, therefore, of our decision against appellee, was that the probate, the sole basis of his claim, is not still in force. This is because of the decree, which set it aside; and, though it was suspended by the appeal, the dismissal put it in force again, and it has been so ever since. This is not sophistry. It is downright truth.

Appellee has it that we decided against him on the ground that he had been deprived of his title by the agreement of May 8, 1844, and deeds thereunder, pursuant to which the appeal was dismissed. He charges us with assuming that his mother, though only four years old, was authorized by the statute of February 15, 1844, to execute the agreement and deeds, and that she and he were parties to them and bound by them. He says that he was surprised to find that the court rested its opinion largely upon this assumption, and that it is the only possible basis therefor. Furthermore, he gathers from the opinion that we think that this agreement was a meritorious one. He expresses surprise at this, and that we found no fraud or collusion between his grandfather, Miles Williams, and the other parties to the agreement, and states that it seemed incredible to him thát it did not shock our sense of justice. And he claims that our conclusion was a sanctioning of the agreement.

Nowhere in the opinion did we take position that appellee was affected by the agreement or deeds. Nor is there the slightest warrant for the claim that we made the assumption stated. It would seem that the thought that we so assumed arose from the consideration that,.in setting forth the facts of the case, we stated that the agreement, though dated May 8; 1844, could not have been fully executed and delivered until after May 22, 1844. This was an inference from the fact that Miles Williams, who signed the name of his daughter thereto as guardian, was not appointed guardian until that date. Appellee thinks that we drew that inference as a basis for the position that the agreement was binding on his mother and him. And it is on this slight thread that he hangs the claim that we so assumed, and that this assumption was the basis of the decision. The inference, we still think, was a sound one; but there was no motive behind it, other than a historical oñe—i. e., to state all the facts in regard to the agreement as we gathered them from the record. Not only did we not make any such assumption; we did not think that there was any basis whatever therefor. In our opinion, then and now, appellee’s mother and he were no parties legally to the agreement or deeds. They were not bound by them, and appellee’s rights were not affected thereby. We did not express ourselves to this effect, because there was no occasion for us to do so. Appellants were not claiming that appellee was affected by them, as he himself notes, and it was palpable that he was not.

We said nothing intimating that the agreement was meritorious; nor did we sanction it by the conclusion we reached. It is true that we expressed no opinion as to whether there was any fraud in the transaction and that we were not shocked by it. Here, too, there was no occasion to express any opinion, as, conceding that there was fraud, appellee’s case was not bettered thereby. As before stated, the sole possible effect thereof was that appellee was entitled to have the dismissal of the appeal set aside and the appeal reinstated. The effect thereof was not to vacate the decree which set aside the probate, the sole basis of appellee’s claim. It is the decree which is in the way of appellee’s success, and not the agreement and deeds, 'and until he can show that in some way it has been vacated he can make no progress. He does not show it by making good that his grandfather, Miles Williams, sold out his mother and him.

It is true that we were not shocked by the transaction pursuant to which the appeal was dismissed. We were not shocked for two reasons. One is that we conceive that it is rarely, if ever, a good thing for a judge, whose prime function is to see things as they are, ever to be shocked. It is not essential to doing justice. It may result in injustice. T. & N. R. R, Co. v. W. U. Tel. Co. (D. C.) 218 Fed. 91, 95. The other is that, taking a broad view of things, there was no real occasion for being shocked. Unless the document in question was in fact the last will of Elmor Williams, it cannot be said that any real wrong was done the appellee, no matter how reprehensible was the -conduct of his grandfather, ana of those who took advantage of it. It is impossible for one, this far away from those days and with the meager information at hand, now to say that it was. It does not follow, from the fact that Elmor Williams executed the document and that it was probated as his last will, that it in fact was such. A' jury in the common pleas court, after a fair trial, found that it was not. To say the least, if the appeal had not been dismissed, it is just as likely that a jury in the Supreme Court would have found the same way as that it would have found in favor of the document. If it would have found against it, the appellee was not hurt by the dismissal. It was the ancestors of appellants who suffered thereby. All that appellee can complain of us for doing is in deciding that the effect of the appeal was not to vacate the decree, but only, as the statute expressly provided, to suspend it, and that we could not help.

The petition for rehearing is overruled.