The Sauk Centre herald., 1903-02-12
considered in the court below was
whether a second will was executed
by the deceased. The court below

whether second will was executed
by the deceased. The court below
received, subject to the objection
that it was incompetent and imma'
terial, certain evidence on the part
of the proponents of the will, offered
for the purpose of showing that if
second will was in fact executed,
it was subsequently destroyed with
the intention of reviving the first
will. 1t was contended on the trial
that this evidence was wholly in
competent and immaterial; the court
did not rule upon the question at
the time, though counsel insisted
that ruling should be made, but
instead received the evidence sub
iect to the objection, with the state
ment that if it was afterwards de-
termined to be inadmissible, it'll
would be stricken out. A large
number of witnesses were sworn on
this branch of the case, and the
evidence of each was taken subject
to the same objection. At the con-
clusion of the trial the learned trial
judges came to the conclusion, and
and so found, that the evidence
offered by contestants to prove the
execution of a second will was in
sufficient to establish the fact, and
announced that in the determination
of that question the evidence offered
by proponents tending to show the
destruction of the second will, if
one was made, was not taken into
consideration, and was thus practi-
cally eliminated from the case,
though no motion was made by con
testants to strike it out. 1t is urged
in this court that contestants did
not have a fair trial of the issues in
the court below by reason of the
admission of this evidence; that it
tended to prejudice or influence the
mind of the court upon the other.
.. .,uul, trial should
Or : need. 1t is unnecessary to
determine the question as to the
admissibility of this testimony, or
consider any of the legal PROPOSE
tions discussed in the very able
briefs of counsel. The finding that
second will was not in factexe-:
cuted renders a decision of such
questions unnecessary, and we re:
frain from expressing an opinion
thereon.
1t is the general practice Of trial
courts in this state, so far as our
information extends, to conduct the
uriaI of court cases, in respect to
rulings on the admissibility of evil
dence, as the trial in the case at bar
was conducted. Where evidence
offered by either party is objected to,
and the court is in doubt as to it's
admissibility, it is received subject
to the objection, the court reserving
the ri ght to admit or exclude it by a
final ruling made after due reflection
and consideration of the question.
, Whether this practice should be
4 pursued in any particular case rests
in the sound practical judgment and
discretion of the trial Judge and can
not safely be interfered with by this
court; to do so would hamper and
unnecessarily interfere with the
orderly conduct of the trial of such
cases. Of. course, in the trial of
cases before jury the court should
exercise great care in receiving evil
, dence subject to objection; for no
doubt the minds of the jury might
: be prejudiced or influenced by i'm
| proper evidence. But it would be
t going too far for this court to hold
} that trial Judge would become pre-
s JUDGED or unduly influenced by evil
: dence of this character, offered for a
particular purpose, and subsequently
3 excluded as not competent or peril
2 nent. If the objections thereto had
| been enormously overruled and the
5 evidence unconditionally received,
the error could not have been cured
, by the mere statemen of the trial
t court that it was not considered in
| deciding the issues in the case.
: Farmers Elevator Co. v. Ins. Co.,
} 40 Mimi, l52. But where not re-
: ceived except conditionally y and sub
7 ject to objection, it may be ignored
, and disregarded and no reversible
r error can be predicted upon it's &C,
= tion in so conditionally receiving it;
: except perhaps in case where it's
discretion was palpably abused to
the prejudice of the losing party.
If counsel for appellant be correct
: in their position, it would result in
applying to trial judges the rule of
{ implied bias as in the case of jurors.
-iNo juror can sit in the same case
= the second time, nor can juror who
: has heard the evidence in a particu-
: lar case and formed an opinion
= therefrom be accepted; but this rule
, has no application to trial judges.
If, AZ urged in the case ct bar, the
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