Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1908-01-09
supreme COURT
OPINIONS

:"
respondent, VIC. P. S. HilIiboe, ct AL,
appellants.
An objection to the sufficiency of
the delegations of the complaint is too
late when made fer the first time in
the supreme court, where the com
plant would he amended as matter
of course of objections had been
made before.
An objection to evidence as incom-
petent, irrevelent and inmaterial, is
too general to suggest the objection
chat the evidence in INCOMPETENT as re-
lating to transaction with a deceas-
ed person, whose executor and heirs
at law are parties to the action.
The cashier of national bank,
which is a party to an action, is a
competent witness to testify to the
fact of the mailing of notice to
, deceased person whose executor and
heirs at law are partiessto the action
as section 1853 R. G. 1905 prohibits
evidence of parties only in such cases.
The contractor of building pulsu-
ant to q contract with the owner OF
the building, is not a competent wit
ness as to payments made on said con-
| tract where the owner of the building
has since died and his executor and
heirs at law are made parties defend
ant with said contractor in an action
by the plaintiff to foreclose its lien
| as sub-contractor.
Payment of the full sum due or a
contract by the owner of building to
the contractor after 80 days from the
time the last materials were furnish-
ed and before the lien of sub-c ~
tractor was filed, exempts the building
and land from a lien filed after such
payment was made, although the own
er does not show that payment vas
altogether made after the 80 days had
expired and before the lien was filed.
The fact that some payments wsre
made before the 80 days had expired
did not prejudice the sub-contractor
as the last payment made was more
than sufficient to protect it if the lien
had been filed in time.
Where contractor and the execut-
ors and heirs at law Of the deceased
owner of building erected under a
contract between said contractor and
| the owner are parties defendant in
an action to foreclose sub-contract-
or's lien, the evidence of the con.
tractor as to, when the building was
completed is not objectionable as re.
ferring to transaction with a party
since deceased under section 1897 r.
G. 1905
| Appeal from the district court OF
Bottineau county; Hon. 3. r. Burke
judge, sitting by request.
Noble, Blood & Adamson for. appel
Ilants.
4 Weeks & Murphy for respondent
4 Judgment reversed and action dis
missed.
Opinion by Morgan, c. J. All con
cur.
Blanche Hisgs, respondent, VS.. Min
/, neapolis, ST. Paul & sauIt Ste. Ma
| rie ny. Co., appellant.
IF 10 nnf on 10, Honx, n v,o~tsax
! for directed verdict or for judgment
Notwithstanding the verdict, when tn,
Ievidence shows conflict as to whe
u ther the cause of action pleaded ha,
been proven.
| Photographs duly verified are admis
I sible in evidence as aids to the jury il
! arriving at an understanding Of tn,
! evidence or of the situation or condi
ton or location of objects or premise
material and revelant to the issues
The weight to be given to such pho
tographs by the jury is not Of cor
elusive effect as % matter of law, bu
depends upon the skill, accuracy an,
manner in which taken, and they ar
to be considered under the same test
as other evidence.
Appeal from the district court G
Deckey county; Hon. F. P. Aller
fudge.
: Geo. T. Webb and Alfred H. Brigh
$ for respondent.
w. 8. Lauder and Austin & Axte
for respondent.
Judgment affirmed. Opinion by Mo
r gan, G. j. All concur.
State Finance Company, responder
VS.. CLAUS n. HaIstenson and Mar
s. Hodsson, appellants, Edward
Hodgson, ct al, respondents.
A sheriff's deed issued on a for
J closure of mortgage, while anot
er is in possession of the land Is n,
void for champerty when such she
liff's deed is based on mortgage e
ecuted before the claimant went In