54 Minn. 190 | Minn. | 1893
After the decision of the former appeal 50 Minn. 222 (52 N. W. Rep. 648) the defendants demanded and obtained a second trial of this action, as being one for the recovery of real property. The only questions presented on the present appeal are —First, whether the plaintiff laid the proper foundation for the introduction of the testimony of E. W. Bell given on the former trial; and, second, whether the court allowed the defendant Mary McCarthy all the land to which she was entitled, as the homestead of her deceased husband.
1. It is not questionéd but that a proper- foundation was laid, within the rule of Minneapolis Mill Co. v. Minneapolis é St. L. Ry. Co., 51 Minn. 304, (53 N. W. Rep. 639,) for the introduction of the testimony of Bell on the former trial, provided no error was committed in the admission of evidence on the preliminary question. As the doctrine of that case .is characterized as "extraordinary,” it may be remarked that it does not go any further than many of the authorities, and not any further than the strictest of them, except that, where the evidence was taken down in full on the first trial by an official reporter, it does not require a showing that, with the exercise of reasonable diligence, the deposition of the nonres
2. Under the assignments of error the' second question is not really in the case. The court allowed Mary McCarthy a life estate in all the property which, according to the finding of fact, constituted the homestead of her husband at the time of his death, and the finding of fact is not assailed by any sufficient assignment of error. The widow’s life estate was limited to the land to which her husband was entitled as a homestead at the time of his decease; and his right was limited to the land, not exceeding the statutory area, which he had dedicated to homestead purposes, and was actually occupying as such at the time of his decease. In this case there is neither finding nor evidence that at the time of the husband’s decease he was occupying,, as a part of, or as appurtenant to, his homestead, any more land than what the court allotted to the widow.
Order affirmed.