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After due notice of the application to pro-, attorney, filed written objections to a trial bate had been given, plaintiffs in error Ara- by jury for the reason that the jury had been melia Parker and Sabrina B. Strong and Par- summoned upon the application of plaintiffs, ry Kilburn appeared in said county court, the and the expenses thereof paid with money two first mentioned claiming to be sisters of deposited by plaintiffs, and the summoning Samuel Bailey, the latter a nephew by a of the jury was irregular and not authorized deceased sister, and all claiming to be heirs | by law. July 14, 1913, the case was called of said Bailey, and protested against the pro- for trial, and May Spencer presented her apbation of said will on the ground that Sam- plication for a continuance of the case, and uel Bailey at the time he made the same was defendants Hamilton and Spencer, by their · mentally incompetent to make the will, and attorneys, moved to quash the panel of the that the will was not executed according to jury summoned for the trial of the case, on law, and prayed that the court refuse proba- the ground the same was irregularly drawn, tion of the will and appoint an administrator that there was no money in the court fund to of Bailey's estate.

pay the expense of the same, and that the October 21, 1912, B. F. Hamilton and Sher- contestants had deposited $200 with which to man Spencer filed an answer to the objection pay their expenses, and that fact would have and protest of Aramelia Parker and others a tendency to bias the jury in favor of the denying the allegations therein contained. plaintiffs. The court overruled the motion November 11, 1912, Aramelia Parker, Sabrina for continuance and the objection to the jury, B. Strong, Henry F. Bailey, James Chrystler, and the cause proceeded to trial to the jury. Hannah Brewer Kipton, Franklin Chrystler, After the conclusion of the evidence, which Charles Chrystler, and John M, Chrystler fil-covers over 300 pages of the case-made, Hamed in the county court of Pottawatomie ilton and Spencer moved the court to discounty their joint protest and objections to charge the jury, and for the court to pass the probate of the will of Samuel Bailey, al- upon the questions of law and fact. Conleging they were next of kin to said Bailey, testants, Aramelia Parker and others, then and further alleged, in substance, that the moved the court to instruct the jury to return purported will of Samuel Bailey was not ex-a verdict in effect denying the probate of the ecuted by him according to law, that he was will. After refusing numerous instructions mentally incompetent to make a valid will, requested by the plaintiffs, the court instructand for various reasons therein alleged the ed the jury, which retired, and thereafter repurported will was void, and the objectors turned into court their findings and answers prayed for the appointment of an administra- to special interrogatories as follows: tor of said estate, and that probation of the “First. Did Samuel Bailey sign the alleged will be denied. A hearing was had in the will? Answer: Yes. county court December 2, 1912, and judgment

"Second. If he signed the alleged will, was the

same executed and witnessed in compliance with rendered admitting the will to probate, and the law as same has heretofore been stated in granting letters testamentary to B. F. Ham- these instructions? Answer: Yes. ilton, executor. From this judgment the ob

“Third. If Samuel Bailey signed the will and jectors, Aramelia Parker, Sabrina B. Strong, uel Bailey in the making of said will controlled

same was executed as required by law, was Samand others, appealed to the district court by an insane delusion as same has been defined of Pottawatomie county. January 30, 1913, for you in these instructions? Answer: Yes. on motion of the objectors, Aramelia Parker

"Fourth. If Samuel Bailey signed the will,

and same was executed as required by law, and and others, filed in the district court of Pot

if he was not in the making of said will contawatomie county, the cause was transferred trolled by an insane delusion as same has hereto the superior court of said county. Febru- tofore been defined in these instructions, did he ary 1, 1913, Aramelia Parker and others filed

have the capacity to retain in memory the ex

tent and condition of his property to compremotion in the superior court of Pottawatomiehend to whom he was giving it and to apprecounty asking that said cause be remanded to ciate the deserts and relation to him of others the district court of said county, alleging to whom he gave nothing? Answer: No." that, under the Constitution and statutes of Thereafter, July 19, 1913, the defendants Oklahoma, said superior court was without moved the court to set aside the special verjurisdiction to hear and determine said cause. dict of the jury and enter judgment for deThe motion was overruled, and plaintiffs ex fendants, and on July 22d defendants filed cepted.

motion for new trial. July 26th plaintiffs, The case was thereafter set down for trial the contestants, filed a motion for judgment July 14, 1913, and on July 9th plaintiffs, con- on the findings of the jury. The court theretestants, filed their motion and application upon pronounced its conclusions of fact and for trial by jury. On the same day the ap- of law, and rendered judgment "that the will plication for trial by jury was sustained on be admitted to probate notwithstanding the the agreement of plaintiffs to withdraw the verdict, and that the costs be taxed to the application for a rehearing of their applica- contestants." Contestants excepted to the tion for a writ of prohibition in the Supreme conclusions of law and fact made by the Court of Oklahoma, and upon condition that court and to the judgment rendered, and the plaintiffs deposit with the clerk of the thereafter in due time filed motion for a new court $200 in cash to defray the expenses of trial, which was overruled, and they prose

The petition in error contains fifty assign-,500 (34 S. W. 245, 36 S. W. 43); Byers v. Com. ments of error, but in their brief plaintiffs

monwealth, 42 Pa. 89; Plimpton v. Somerset, in error present the case to this court upon

33 Vt. 283. "The trial by jury secured to the

subject by the Constitution is a trial accordeight general propositions, viz. :

ing to the course of common law, and the same, (1) “The court erred in overruling motion for in substance, as that which was in use when the new trial upon the grounds assigned that de- Constitution was formed.' East Kingst fendants or contestants below had the right of Towle, 48 N. H. 64 (97 Am. Dec. 575, 2 Am.

by jury, and consequently on disputed evi- | Rep. 174]. See, also, Copp v. Henniker, 55 N. dence the court could not sustain a motion for H. 179 (20 Am. Rep. 194]; Hagany y. Cohnen judgment notwithstanding the verdict.”

et al., 29 Ohio St. 82. (2) "The superior court was not in existence "Judge Cooley, discussing these provisions, at the time of the rendition of judgment, Octo- said: 'All the state Constitutions preserve the ber 13, 1913.”

right of trial by jury, for civil as well as for (3) "If the court was a legally existing court, criminal cases, with such exceptions as are specit had no jurisdiction to make findings or render ified, and which for the most part consist in such judgment at a term subsequent to the term the cases as are of small consequence, and are tricase was tried, without the court being adjourn able in inferior courts. The constitutional ed to said term."

provisions do not extend the right * * in (4) "The court erred in not submitting to the the cases in which it was a matter of right bejury the issue of undue influence, and in not fore.'” requiring the jury to find generally."

(5) "If the verdict of the jury is special. asl And again, at page 447 of 27 Okl., on page contended in defendant in error's brief, a motion 1039 of 112 Pac. (40 L. R. A. (N. S.) 940], it is for judgment will not lie; and this because a further said: motion for judgment applies only when the evi

"The constitutional provisions preserving trial dence is undisputed, and when judgment may be rendered on the pleadings, notwithstanding the

by jury in this state specifically eliminates some

of the features thereof as it existed before the verdict, and never applies when a special verdict is relied upon.”

admission of the state. Section 19, art. 2, aft(6) "The evidence of Hamilton and Spencer

er providing that the right of trial by jury shall was incompetent, and motion to exclude same

be and remain inviolate, specifically provides should have been sustained.”

that in county courts and courts not of record (7) "The court's view of the law as expressed

a jury shall consist of six men, and in all civil in its opinion and by its instructions to the jury

cases, and in criminal cases less than felonies,

three-fourths of the whole number of jurors was erroneous.” (8) "The superior court had no jurisdiction

shall have power to render a verdict. By these of this case on the record.”

provisions unanimity in the verdict is no longer

required in any civil case, and the number con[1, 2] It is claimed by plaintiffs in error stituting the jury, as to county courts, is rethat, under section 19, art. 2, of the Constitu- duced from 12 to 6; but, except as to these two tion of Oklahoma, the parties litigant are

important changes in the features of the jury

trial as it existed at common law, the precedentitled to a trial by jury as a matter of ing clause of the section provides that the trial right in all cases in courts of record in this by jury shall be and remain inviolate. It was state when issues of fact are joined by the evidently intended by such declaration of right

that those essential features of the jury trial pleadings. We cannot agree with this con

| as existed before the admission of the state, not tention. The section of the Constitution re- specifically modified by the Constitution, should ferred to has been construed to confer the be preserved.” right of trial by jury to be absolute in cases In the case of State ex rel. West, Attorney only where the right existed at common law General, v. Cobb, 24 Okl. 662, 104 Pac. 361, as construed at the time of the erection of 24 L. R. A. (N. S.) 639, in an opinion by Justhe state, except as modified by the Constitu- tice Dunn, it is said, quoting from paragraph tion.

2 of the syllabus: In the case of Baker v. Newton, 27 Okl.

“The right of trial by jury, declared inviolate 436, 112 Pac. 1034, 40 L. R. A. (N. S.) 940, by section 19, art. 2, p. 83, Snyder's Const. it was held, quoting from paragraph 4 of the Oklahoma, except as modified by the Constitusyllabus :

tion itself, means the right as it existed in the

territory at the time of the adoption of the Con“Trial by jury secured to the people of the stitution." state by section 19, art. 2, of the Constitution, is a trial according to the course of the common Apache State Bank v. Daniel, 32 Okl. 121, law as it existed, and the same, in substance, | 121 Pac. 237, 40 L. R. A. (N. S.) 901, Ann. as that which was in use when the Constitution

Cas. 1914A, 520, was a case in which action was adopted, except as specifically modified by the provisions of the Constitution."

was commenced in the county court to com

pel the administratrix to inventory as part In the case of Baker v. Newton, supra, Justice Hayes speaking for the court, after

of the estate for which administration was copying section 19, art. 2, of the Constitution,

therein pending certain bank stock which it

was alleged belonged to the estate. The acand construing the same, says: "The question therefore arises : What consti

tion was resisted by the administratrix, who a trial by jury as guaranteed by the Con- claimed that she was the owner of said stock stitution? This question has been under inves in person. The issue was thus formed by tigation by many courts of the nation, both state the pleadings, and a trial had in county and federal, and there is unanimity in the opinions that the right of trial by jury secured

court, which resulted in an order of that by the Constitutions of the various states is court requiring the administratrix to invensimply the right to a trial by jury constituted tory said property. From this order the adsubstantially and with the same elements and in- ministratrix appealed to the district court. cidents as existed when the Constitution was adopted. Carroll v. Byers et al. (Ariz.) 26

Trinn 96 A trial was had in the district court before

A

mitted and the trial resulted in a verdict To the same effect is the case of Richardand judgment for the administratrix, and son-Roberts-Bryne D. G. Co. y. Hockaday et appeal prosecuted to this court. One of the al., 12 Okl. 546, 73 Pac. 957, in which the grounds relied on for reversal was the sub-case of Barnes v. Lynch, supra, is quoted mission of the case to a jury. It was held with approval. that the submission of the case to a jury for In the case of Mosier and First National a general verdict was erroneous. But it ap- Bank of Walter v. Walter, 17 Okl. 305, 87 pearing that the court, having carefully re- | Pac. 877, the territorial court held as folviewed the evidence, reached a conclusion in- lows, quoting from paragraph 3 of the sylladependent of the jury, the case was not re-bus: versed on that ground, although the conclu "In an equitable proceeding for the cancellasion reached by the court was the same as tion of a deed, the jury sits merely in an advis

ory capacity to the court, and a party cannot found by the jury.

complain of a refusal of the court to submit speThe case of Cartwright v. Holcomb, 21 Okl. cial interrogatories, as their submission or re548, 97 Pac. 385, 17 Ann. Cas. 277, appears jection by a court of equity lies solely within its directly in point. The case was one involy- /sound discretion, and it may adopt or reject

such as it deems proper, and no error can be ing the contest of a will the probate of which

predicated thereon, unless such discretion has was resisted in the county court. The court been abused." sustained the validity of the will and admit-1 Section 4993, Rev. Laws 1910, reads as folted it to probate. Contestants appealed lows: therefrom to the district court, where a de- “Issues of law must be tried by the court, unmand for a trial by a jury was refused, and less referred. Issues of fact arising in actions the case was tried by the court without a for the recovery of money, or of specific real

or personal property, shall be tried by a jury, jury. Judgment was rendered admitting the

unless a jury trial is waived, or a reference be will to probate. The contestants appealed | ordered, as hereinafter provided." from the judgment of the district court, and Our statute was taken bodily from the a reversal was sought on the ground plaintiff statutes of Kansas, viz., Gen. Stat. p. 680, 8 in error had been denied a trial by jury in the 266. district court. The case involved a question In the case of H. H. McCardell et al. v. H. of fact upon which issue had been joined by | w. MoNay 17 Kan. 133. nlaintiffs s

| W. McNay, 17 Kan. 433, plaintiffs sought to the pleadings. This court, through the pres

set aside a deed to certain property and have ent Chief Justice, citing a number of authori

the same subjected to his judgment. In the ties supporting the opinion, held that in such

trial of the case the defendant demanded a case a trial by jury as a matter of right did

jury, which was refused, and on appeal the not exist at common law in the territory of

Supreme Court of Kansas, passing upon the Oklahoma.

right of the litigants to a trial by jury unSuch was the condition of the law in Ok- I der the statute above referred to, sustained lahoma at the time of the erection of the the action of the trial court in the followstate and the adoption of the Constitution. Ling language: As said by Justice Kane in the Cartwright "The only question in the case in this court Case, supra, it was within the discretion of is: Did the court below err in refusing the dethe trial court to order a jury to pass upon fendants, plaintiffs here, a trial by jury? This

question must be answered in the negative. questions of fact arising in the case. It being

" Dern | This is not one of the actions in which a party

this discretionary with the court whether it would is entitled to demand a jury as a matter of submit the issues of fact to the jury, we right. In civil actions a jury can be claimed think it was likewise within its discretion

as a matter of right only, for the trial of ‘is

| sues of fact arising in actions for the recovery whether it would accept and adopt the find- of money, or of specific real or personal propings of the jury upon the issues submitted erty.' Gen. Stat. 680, § 266. Now, this is not to them. In such cases it is held the findings an action for the recovery of money. Neither is

it an action for the recovery of real property. of the jury are advisory only.

Nor is it an action for the recovery of personal The case of Barnes et al. v. Lynch et al., 9 | property." Okl. 156, 59 Pac. 995, was a suit to set aside In the case of Houston v. Commissioners deeds to real estate and decree title therein of Cloud County, 19 Kan. 396, the action was to be in plaintiff and for an injunction re- by Houston against the commissioners and straining defendant from disposing of the treasurer of Cloud county to restrain the land in controversy. The suit being one in

assignment and transfer of certain tax sale which the parties were not entitled to a trial

certificates, and to set aside the treasurer's by jury as a matter of right, it was held, | sale for taxes upon which such certificates quoting from the syllabus :

were based. At the trial the plaintiff, Hous“In cases of equitable cognizance, while the ton, demanded a jury, which was refused, judge may call in a jury or consent to one, for

and upon appeal the action of the trial court the purpose of advising him upon the questions of fact, he may adopt or reject their conclusions, was sustained. In this case the case of as he sees fit, and the whole matter must even- McCardell v. McNay, supra, was approved. tually be left to him to determine, and instruc- ! We have cited the several authorities tions to the jury furnish no ground of error up

above referred to in view of the earnest on appeal. It was not only the right, but the duty, of the court to have determined all ques

contention of counsel for plaintiffs in error were entitled to a trial by a jury as a mat-, signed by the clerk of said court; hence we ter of right, and consequently to judgment decline to consider this objection. on the findings and verdict of the jury. We [4, 7] Plaintiffs in error's fourth propo think the authorities above cited settle plain-sition is: tiffs in error's first proposition against them. “The court erred in not submitting to the jury

It is further contended by plaintiffs in the issue of undue influence and requiring the error that, the trial court having agreed

jury to find generally." to call and impanel a jury in the trial of The case being one in which the parties the case on the condition that plaintiffs were not entitled to a trial by jury as a would abandon their motion for rehearing matter of right, and the court not being of their application for a writ of prohibition bound by the findings of the jury, there was in the Supreme Court and deposit sufficient no error in failing to instruct upon the issue money to pay the expenses of the jury, the of undue influence or in failing to require court was bound to afford plaintiffs a trial the jury to find a general verdict; the by jury. It appears the court did all it court having refused to adopt the verdict agreed to do. It did call a jury and sub- which the jury did return. mitted d to them the facts of the case. The In the case of Oklahoma Trust Company court did not obligate itself to be bound by v. Stein, 39 Okl. 756, 136 Pac. 746, it is held: the action of the jury, and, if it had so "In cases of equitable cognizance the judge agreed, it would not thereby bave estopped |

may call in a jury or consent to one for the

purpose of advising him on questions of fact, itself from exercising the right under the

and he may adopt or reject their conclusions as law to reject the verdict of the jury in so he sees fit, inasmuch as the whole matter must far as it did not comport with the court's be left to him to determine eventually, and it conclusions after hearing all the evidence in

is not error for him to refuse to submit all the

questions of fact to the jury, but he may submit the case.

such as are controverted or such as he may de(3, 5] Plaintiffs in error's second propo- sire to be advised upon." sition involves the constitutionality of the To the same effect is the case of Galer v. superior court of Potta watomie county. It Berrian et al., 43 Okl. 303, 140 Pac. 155. See, is claimed that article 1, c. 20, § 1797, Rev. also, Kentucky Bank & Trust Co. v. PritchLaws 1910, under which the superior court ett, 143 Pac. 338; Oklahoma Trust Co. v. of Pottawatomie county was organized, is Stein, 39 Okl. 756. 136 Pac. 746. unconstitutional. The section complained of [8] Plaintiffs in error's fifth proposition is is article 7, c. 14, Sess. Laws 1909, p. 181. I as follows: The act referred to was construed, and the

If the verdict of the jury was special, as constitutionality thereof sustained, by this contended in defendants in error's brief, a mocourt in a well-considered opinion by Jus- tion for judgment will not lie; and this because tice Hayes in the case of Burks v. Walker,

a motion for judgment applies only when the

evidence is not disputed, and when judgment 25 Okl. 353, 109 Pac. 544, and the conclusion

may be rendered on the pleadings notwithstandtherein reached has been since recognized ing the verdict, and never applies when a special as the settled law of the state, and in a verdict is relied upon." late case of Hatfield v. Garnett, 146 Pac. 24, The court did not adopt the verdict, and, this court referred to Burks v. Walker with the findings of the jury being merely adapproval. The validity of the act and the visory, the question of whether it was spedecision of Burks v. Walker is again recog-cial or general was of no concern, and it nized by this court in the case of Leather was immaterial upon what instructions it ock v. Lawter et al., decided in March, 1915, was reached, or whether it was upon conand found in 146 Pac. 324. No reason has troverted or uncontroverted evidence. The been shown why the conclusion reached in record shows the trial court based its judgBurks v. Walker, supra, should not be ad-ments upon its own conclusions of what the hered to. We think further consideration of facts were, as it had a right to do. this proposition at this time a consumption. In the case of Barnes v. Lynch, supra, we of time which the congested condition of find quoted with approval the following the docket of this court will not justify. cases:

Plaintiffs in error's third proposition is Koons v. Blanton, 129 Ind. 383, 27 N. E. as follows:

334, from the Supreme Court of Indiana as “If the court was a legally existing court, it follows: had no jurisdiction to make findings and render "Since, in a suit in equity to reform a deed, judgment subsequent to the term the case was the

the parties are not entitled to a jury, and since tried without the court having been adjourned to the court, when it calls a jury to its aid in such that time."

case, may disregard their findings, the parties [6] We have already disposed of the ques-cannot complain of the manner in which the tion of the legality of the court. And on

questions are submitted, nor to the form of the

interrogatories or instructions." examination of plaintiffs in error's assign

1 Also Missouri Valley Lumber Co. v. Reid, ments of error we fail to find any reference to the judgment of the court having been 9

4 Kan. App. 4, 45 Pac, 722, in a case of forerendered at a term of court subsequent to

closure, as follows: the trial of the case, and the only evidence

“The finding of the jury was in any event

merely advisory, and not binding upon the court. of such fact to which our attention is called | In the face of it, the court had a right to decide is the statement in plaintiffs in error's brief, for itself all questions of fact as well as of

law in the case"-citing Franks v. Jones, 39, versations between them at that place. This Kan. 236, 17 Pac, 663; Moors v. Standford, 2 witness was also subjected to a rigid crossKan. App. 243, 41 Pac. 1064.

examination by contestant's counsel, by which Plaintiffs in error's sixth proposition is: he was interrogated generally as to his rela"The evidence of Hamilton and Spencer was tions with the deceased and his conversations incompetent, and motion to exclude the same

with him. Some of his answers, like the witshould have been sustained."

ness Hamilton's, were inadmissible. But, if The witness Hamilton was named as ex

we concede the testimony of the witnesses ecutor of the will, and, as such, applied for Hamilton and Spencer was erroneously adits probation, and was one of the proponents

mitted and influenced the jury in their findin the case, insisting upon the validity of

|ings and verdict in the case, still we must not the will and its right to probate. Sherman

overlook the fact that the court did not adopt Spencer was the legatee named in the will,

the findings of the jury. - There was other and was an adverse party. The contestants

evidence sufficient to authorize and support were the next of kin and relatives whose

the court's judgment, which it had the right rights to Bailey's property depended upon

to enter notwithstanding the findings of the bres ing the will. Hamilton and Spencer | jury. The fact that incompetent evidence were called in behalf of proponents, and

was admitted, will not justify a reversal of testified as witnesses in support of the will

the judgment in the absence of a showing and its admission to probate. The statute

plaintiffs in error were prejudiced thereby. which it is contended by plaintiffs in error

What we have said with reference to the tesrendered the witnesses Hamilton and Spen

timony of the witnesses Hamilton and Spencer incompetent to testify is found in section

cer, applies to the evidence of the witnesses 5841, Comp. Laws 1909, which, so far as ap

Northrupt, Frazier, Ong, Crump, and others, plicable, reads as follows:

which plaintiffs in error clain, was erroneous"No party shall be allowed to testify in his ly admitted before the jury. own behalf, in respect to any transaction or

hamarte? [9] In the case of Tobin v. O'Brieter, 16 communication had personally by such party with a deceased person, when the adverse party Okl. 500, 85 Pac. 1121, it is held, quoting from is the executor, administrator, heir at law, next

paragraph 3 of the syllabus: of kin, surviving partner or assignee of such de

"In the trial of a case the question of admitceased person, where they have acquired title to the cause of action immediately from such

ting or rejecting testimony is one intrusted *

largely to the sound discretion of the trial court; * * person.”

and, where the matter submitted by the issues It will be observed the statute quoted does in the case is not one where the parties are ennot disqualify the administrator or the lega-titled to a jury as a matter of right, and the tee in a will as a witness in any case. In this

ultimate decision of the case is with the court,

and not with the jury, great latitude is allowed case the witnesses Hamilton and Spencer

in the exercise of discretion by the court in were competent witnesses to prove any mate admitting or rejecting testimony, and the case rial fact in the case of which they had knowl- will not be reversed in this court for error in edge, unless such fact was in respect to some

this particular, unless such an abuse of discre

tion is shown as deprives the objecting party of transaction or communication had personal. I some substantial right." ly by such witnesses with the deceased. Dr. In Ray V. Harrison, 32 Okl. 17, 121 Pac. hamilton was introduced by proponent, and, 633, Ann. Cas. 1914A, 413, it is held, quoting without objection, testified at length as to the

| from paragraph 3 of the syllabus: deceased's condition of mind and body up to “When the testimony upon a given point is all the time of his death, and that he was de | harmonious, a cause will not be reversed beceased's physician several years before his cause some of the evidence thus offered may death. Some of the answers of the witness

have been inadmissible." were inadmissible, and should have been ex

ould have been ex. In the case of Daniel v. John P. London cluded from the jury, but substantially the

Co., 44 Okl, 297, 144 Pac. 596, it is held, quotsame statements which the witness Hamilton ing from paragraph 1 of the syllabus: says were made by Bailey were also testified,

“The improper admission or exclusion of evito by the witnesses Frank Boggs and Mary

dence, if not prejudicial to the party complain

ing, is not ground for reversal." Skillington, without objection or contradic

As said in Cartwright v. Holcomb, supra, tion. A lengthy cross-examination by coun

the presumption is, in the absence from the sel for contestants of the witness Hamilton

record of anything to the contrary, that the appears to have covered every matter about

court understood the weight to be given to the which this witness testified in chief, and

evidence before it. much more. Hamilton was afterwards re

Plaintiffs in error's seventh proposition: called by contestants and interrogated as to

"The court's view of the law as expressed in the property and estate in his hands. Much

the opinion and by its instructions to the jury of what has been said relative to the testimo-was erroneous.” ny of the witness Hamilton can be said as to This proposition is answered in our conthe testimony of the witness Sherman Spen- sideration of propositions Nos. 4, 5, and 6. cer. He was interrogated and testified with-| [10] Eighth proposition: out objection as to the relations and feelings "The superior court has no jurisdiction of this of the deceased to the witness and witness' case on the record.” mother, and as to a meeting by the witness Under this proposition it is contended by

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