The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1910-09-26
Decisions of the Supreme Court

Dakota, April, 1910, term.
Robert Aud and Bertha Johanna
Mccartney, plaintiffs and appellants.
VS.. +. w. Cathro, Laura M. Dana, and
Gertrude G. Dana. defendants and
respondents.
l, Evidence examined, and held:
There is not sufficient evidence to es-
tabllsh that the alleged will in contro-
versy was executed as the result of
undue influence practiced upon the
testatrix.
q The privilege of secrecy to all
information acquired by a physician
from patient in attending the pa
tient professionally in a proceeding
contesting the probate of an alleged
will of decedent, In the testimony and
opinion of decedent's attending physi-
clan as to her mental capacity, based
entirely on information derived from
her statements or the physicians OBJ
servation while treating her profess
sionally and for the purpose of such
treatment, were probably excluded.
8. The failure Of the trial court to
have the testimony OF O. witness read
at the request Of the jury. held, under
| the circumstances Of the case at bar,
not error
4. The charge of the court relating
to the disposition a testator or tesla
trix can make of his or her property
under the laws OF this state. correctly
states the law.
.. The rule is that an nonexpert will
| be allowed to express an opinion upon
an issue OF sanity only after he has
| testified to acts, conversations, or
| aI1 - ErlR
cate sanity.
8. In this class OF cases the question
of the competency Of the witness to
| testify is one for the court, and Is
also question lying within the sphere
of judicial discretion; and the familiar
rule that such discretion will not be
reversed except in cases of abuse APP
plies in the case of nonexperts as well
as experts who are called to express
| opinions upon an issue of insanity.
(Syllabus by the court.)
Appeal from district court, Bottineau
county, Templeton, judge.
Action by Robert Aud and Bertha
Johanna Mccartney against F. w.
| Cathro, Laura NJ. Dana. and Gertrude
| G. Dana
! From an order denying motion
| LOT d new TRIAL. contestants appeal.
! Affirmed.
Noble Blood G. Amundson and (BaIl,
Watson, Young & Lawrence of coun-
sel) for appellants.
Weeks & Murphy and Geo. A. Bangs,
for respondents.
Opinion of court by Carmory, judge,
Fisk and Spalding, judges, concurring,
and Ellsworth, judge, dissenting, Nor
gan, ]. c.. not participating.
In the supreme court, state Of North
Dakota, April, 1910, term.
The state of North Dakota, ex rel.
F. c. Heffron, assistant attorney gen.
eral plaintiff and appellant, VS.. Joseph.
BIeth and Leonard Bleth, defendants
and respondents.
l. "A notice of appeal to this court
Is sufficient where it states that the
appeal Is from an order, fully describ-
ing 1t, although it does not expressly
state that the appeal is from the whole
Of the order, in accordance with the
provisions of the statute.
2. A failure to follow the provisions
Of Sec. 1925, r. c., 1905. by enumerat-
ing, in an order made. all the papers
on which II is thased. does not neces-
sarily authorize a dismissal Of an APP
peal from such order.
8. Payment of costs to the clerk, pur-
suant to an order OF court. without
proof of the acceptance thereof by the
appellant, is not ground fir the dis
missal of the appeal
T. An order of court is not made
without notice when it lis expressly
based on the terms and conditions of
a former order, stating that when GER
tain conditions have been complied
with another order will be made with
; out further notice.
5. Whether a building in which a
tenant of the owner has maintained a
nuisance by keeping and selling in
toxicating liquor therein Of which the
owner had knowledge prior to the COM
mencement Of an action to abate the
nuisance shall be turned over to the
owner after 1t has been closed by pro-
ceedings under Sec. 1878, r. c.. 1905,
is discretionary with the trial court
and such discretion win not be dis
turbed except in cases of the abuse
thereof.
g. If the owner complies with Sec.
1919, supra, and the trial court is sat-
h isfied of his good faith in intending to
abate the nuisance, the mere fact that
he was aware of the maintenance OF
the nuisance by the tenant before the
abatement proceedings were COM
menced does not necessarily deprive
the owner OF the benefits of said
, section.
(Syllabus by the COURT.
Appeal from the district court OF
/. Stark county, Crawford, judge.
, Action to abate nuisance. Petition
, of defendant for abatement OF the ac-
, ton on compliance with Sec. 1878, r.
c., 1905, granted.
/ Affirmed.
| Andrew Miller, attorney general, Al.
: fred Zuger, c. l. Young, and F, c.
: Hebron, assistant attorneys general
v attorneys for appellant.
McFarlane e. Murtha, attorneys fol
4 respondent.
! Opinion Of court by Morgan, G. j.
Q all concurring, and Spalding, judge
0 concurring specially.
Mrs. Jacob Wilmert, Lincoln, I'll.
found her way back to perfect health
lShe writes: Il suffered with kidney
/, Trouble and backache and my appetite