Godown v. Linton

OPINION

BY THE COURT:

This is an appeal on questions of law and fact from a judgment of the Common Pleas Court denying, the claim of applicants, James Alfred Linton and Mary Margaret Heilman, that they are the lawful heirs of Paul Linton, deceased, and therefore entitled . to a share in the real estate of Edward Linton, deceased, who was a brother of Paul Linton. The original action proceeded in partition and the issue here presented arises on the cross-petition of defendants-appellants.

Under tne law, as it develops, the right of the appellants to share in the estate of Edward Linton, deceased, depends upon proof that their mother, whose maiden name was Ida Mae Walters, was the common law wife of Paul Linton, deceased.

We have carefully read all of the testimony and have been favored with the opinion of Judge Turner who tried the case in Common Pleas Court. We are satisfied that the opinion of the Common Pleas Judge is correct, that the proper judgment was entered m that court, and therefore the same judgment must be entered here for the reasons appearing in the opinion of Judge Turner There is insufficient proof of the Holding out of Ida Waiters as the wife of Paul Linton to the extent that it may be said under the law that she was reputed in the community and circle in which they moved as his wife.

The finding and judgment of this court will be against the defendants-appellants.

GEIGER, PJ„ BARNES & HORNBECK, JJ., concur.

ON MOTION TO DISMISS APPEAL

Decided January 17, 1941

OPINION

BY THE COURT:

Submitted on motion of appellees to dismiss the appeal for the reason that defendants-appellants filed no motion for new trial in the trial court. The motion will be overruled upon the authority of the 5th syllabus in Anderson v Local Union No 413 et, 29 Abs 364.

HORNBECK. PJ„ GEIGER & BARNES, JJ., concur.