The Bismarck tribune., 1919-04-12
SUPREME COURT
From Bur,eiah County.

Erastus A. Williams, as executor of
the last will and testament of Dan
Williams. deceased, plaintiff and re-
spondent, vs. Mrs. Betsa Clark, de-
fehdahtl and appellant.
Syllabus:
y j. In an action to determine title
and adverse claim to a certain note,
mortgage and assignment between
Erastus A. Williams, who claimed
| title @thereto as sole devisee in the
will of his brother, Daniel, to whom
the note was payable and who during
his life time was the owner of same
and the mortgage securing. it, and
| Daniel Williams. she having obtained
the owner of the note and mortgage
and claimed to have an elleged assign
| ment of the mortgage, the trial court
found that Erastus A. Williams was
! the owner of the nate and mortgage
and that the same had never been
transferred to Mrs. Betsa Clark; held
that the findings Of the trial court in
this regard are sustained by the evi-
dence
2. Subdivision 2 OF Section 1871
provides that "in civil action or pro
ceeding by or against executors, ad-
ministrators, heirs at law or next Of
kin in which Judgment may be zen
dered or ordered entered for or
against them, neither party shall be
allowed to testify against, the other
as to any' transaction whatever with
or statement by the testator, or in.
testate unless called to testify there
to by the. opposite party. The court
properly prohibited the defendant and
her witnesses from: givipg any testi-
mony yiolative Of the, above section
3. i, Daniel Williams executed an as.
signment in blank of the mortgage in
question, The note, mortgage and as
signment came into the possession of
the defendant. The. blank assign.
ment became completed in form by
the insertion of the name MRS. .Betsa
Il Clark" Defendant claims those words
were written in the assignment In
the handwriting of Daniel Williams
and adduced testimony to that. effect.
Plaintiff introduced competent testi-
mony tending to prove that the words
Mrs Betsa Clark" were not in the
handwriting Of Daniel Williams nor
in that of fdefendant. The court found
there was no transfer of tho note, in
terest, coupon notes or mortgage
That finding upported by the evi'
dence
5. Under the circumstances in this
case, the refusal of the court to grant
permission to file an amended an
swer at the time of the trial rests
upon the principle Of whether the
amendment should have been allowed
in furtherance Of Justice. In this
case, it is clear the granting, OF the
amendment would not have been in
the furtaerance of justice. In this
case, it is clear the granting of the
amendment would not have been ir
the furtherance OF justice. The court
had the discretion, under the circum
stances, to either grant or refuse tht
amendment. 1t refused and in thi:
there was no abuse of discretion.
II Appeal from the district court o
Burleigh county, A. T. Cole, Judge.
Affirmed. i.
II Opinion of the Court by Grace, J
Christianson, ChyAJ., Bronson, j., ant
Cooley, District J. /, concur in result
Birdzell, ]. being disqualified did no
participate, Hon Gas N. Cooley
judge Of First District. sitting in hi
stead. ~
Eenton Baker, Bismarck, North D.
kota, and Fisk & Murphy, Minot
Dakota, attorneys for plaintiff
Il Sullivan & Sullivan, Mandan,, Nortl
Dakota, attorneys for defendant an
appellant.
REAcH AonEE MRNr.
II Berlin, April PA report ffof
Munich today states an. agreemeu
has been reached between the Baval
Ian council and the communists