IN RE: the ESTATE of William LLEWELLYN (1948)

I dissent from the order denying respondents' petition for hearing in the Supreme Court in the above entitled cause primarily because, in my opinion, it was an abuse of discretion for the appellate court to direct the entry of a judgment in favor of appellant. While it is true that section 629 of the Code of Civil Procedure provides that if a motion for a directed verdict or for a judgment notwithstanding the verdict is denied, the appellate court on appeal from the judgment may order judgment to be entered in favor of the appellant when it appears from the whole record that a verdict should have been so directed at the trial, I do not believe that the court was warranted in making such direction in this case even if the views expressed by the court as to the insufficiency of the evidence is correct. It is my view that in cases such as this where it may be possible for respondent to offer additional evidence on the retrial of the case, he should have that opportunity, and that the power of the appellate court to direct a judgment notwithstanding the verdict should be exercised only in those cases where it clearly appears that it would be impossible for a party against whom the judgment is directed to produce sufficient evidence to support a judgment in his favor upon a retrial of the case. Those familiar with trial practice know that it quite often happens that a stronger case can be made on a retrial than during the original trial. Furthermore, until the appellate court held that the evidence was insufficient to support the judgment, the prevailing party in the trial court had reason to believe that he had presented all of the proof necessary to support the judgment inasmuch as the trial court had ruled in his favor in denying motions for a nonsuit, directed verdict and judgment notwithstanding the verdict. In my opinion it is out of harmony with the modern concept of justice and fairness that a prevailing party in the trial court should be precluded by an arbitrary ruling of an appellate court from the opportunity of presenting evidence which may be readily available on a retrial to support a judgment in his favor.

From the cursory examination which I have been able to make of the record in this case, it is my present view that under settled rules governing an appellate court in passing upon the weight and sufficiency of the evidence and the credibility of witnesses, there is ample evidence in the record in this case to support the judgment of the trial court on the grounds of both mental incompetency and undue influence and that the judgment should therefore be affirmed, but I have not had an opportunity during the limited time allowed for the review of a petition for hearing to make an exhaustive study of the record and I am therefore not in a position at this time to express a considered opinion as to what final determination should be made in this case.