a resulting injury. To entitle him to recover, the one was just as essential and material as the other. The plaintiff testified to a state of facts tending to show a serious injury. The physician called in his behalf testified that the plaintiff sustained a fracture of the femur, and that the injury was permanent. The physicians called by the defendant testified that, from an examination made by them on the morning after the accident, they discovered no symptoms or indications of a fracture or other injury, and testified to the effect that there was nothing the matter with him except a slight external bruise, and a swelling about the hip. The testimony so given by them, and erroneously admitted, directly bore and related to a material issue. The jury had the right to believe them, instead of the plaintiff and the physician called in his behalf, and to find the facts as testified to by them. So believing and so finding from the incompetent testimony before them, the jury may have believed that the plaintiff, in giving his testimony, did not speak the truth as to the nature and extent of his injuries, and for that reason he likewise did not speak the truth when testifying concerning the question of the defendant's negligence or that of contributory negligence. Finding that the plaintiff had sustained no substantial injury might also have influenced the jury in determining questions as to the speed and movements of the car, and the manner in which it was operated and in which the accident happened. It is not a case of merely redundant or superfluous testimony introduced to support a fact or issue otherwise established by indisputable proof. To the contrary, the testimony so introduced directly tended to refute, and may have completely destroyed, the evidence adduced on behalf of the plaintiff on an issue essential to his cause. That the natural effect of the testimony tended to injuriously affect the plaintiff on a material issue cannot be gainsaid, and I cannot say, nor do I think it shown, that the error committed could not, or did not, affect the result of the trial.

If the written statement made by the plaintiff was erroneously admitted, as I think it was, there ought not to be any question as to its prejudicial effect, for some of the con

tents of that writing pertained directly to the issues of negligence and contributory negligence and may have influenced the jury in deciding them in favor of the defendant.

Lastly, I cannot agree with the conclusion that, even upon the evidence in the record, a prima facie case was not made entitling the plaintiff to go to the jury on the question of the defendant's negligence. In the first place, the written statement signed by the plaintiff and delivered to Dr. Van Cott ought to have been excluded. In the next place, while the plaintiff, in giving his testimony, admitted that the signature to the writing was his signature, yet he also testified that the injury received by him rendered him partly unconscious, and that he was in a dazed and in a semiconscious condition on the evening of the accident, and had no clear recollection of Dr. Van Cott's visit, and because of his mental condition he had no recollection of any writing signed by him or any statements made by him to the doctor on that visit. Whether the jury believed the plaintiff or the doctor, who testified that the plaintiff was conscious and conversed rationally, and that he signed the statement after it was written by the doctor and read to the plaintiff, I do not know. It was within their province to find either way. The question of whether the plaintiff knowingly and understandingly made the statements and signed the writing was in dispute. The evidence bearing thereon was conflicting. Looking at the evidence most favorable to the plaintiff on the issue of defendant's negligence, it, in substance, is shown that the plaintiff boarded the defendant's car. As it was approaching Ninth South, he paid his fare when demanded, and told the conductor that he desired to leave the car at Ninth South. The conductor said, "All right." The car slowed down. The plaintiff arose from his seat and went to the back platform, and stood there a few seconds, and when the car about reached the north side of Ninth South, a place where the car usually stopped coming from the north, and as testified to by him: "Just when they was going slow, I stepped down on the step. I thought they were going to stop. It was pretty near stopped, maybe not quite stopped." While so standing there, the car started up quickly, and, as

testified to by him, he "fell off." While he does not, by the use of any direct language, say such movement of the car threw him off, yet I think such fact may be fairly inferred from all the testimony given by him. True, he also testified that he knew the machinery of the car was controlled by the motorman, and that he did not inform him of his desire to leave the car, and that he did not know whether the conductor pulled the bell cord to stop, but thought he did. I think the triers of fact may find, upon such evidence, that when the plaintiff informed the conductor that he wanted to leave the car at Ninth South, and the conductor replied, "All right," he had done quite enough to apprise the operatives of the car of his intended destination, without also going forward and informing the motorman, or without being able to testify positively that he saw the conductor pull the bell cord. After he informed the conductor that he desired to leave the car at a particular place, and the car slowed down, almost stopping at such place, as testified to by the plaintiff, the triers of fact may say that he had the right to assume that it did so to afford him and others an opportunity to alight therefrom, and that while he was so standing on the step in the presence of the conductor, and in readiness to alight, the speed of the car was quickly increased, and no sufficient opportunity given him to alight, and that he was injured in consequence thereof. I think a sufficient prima facie case was made on the question of the defendant's negligence, even upon the evidence found in the record, to let the case go to the jury.

I think the judgment of the court below ought to be reversed, and the case remanded for a new trial.

BARRETTE v. WHITNEY.

No. 2013. Decided November 23, 1909 (106 Pac. 522).

1. JUDGMENT-COLLATERAL ATTACK-PROBATE PROCEEDINGS-ORDERS OF COURT SUBSEQUENT TO APPOINTMENT OF EXECUTOR OR ADMINISTRATOR-NOTICE. Under Comp. Laws 1907, sections 3779, 3817, 3818, 4026, 4037, providing that no order affecting realty shall be void for want of notice on it appearing that the executor or administrator was appointed by a court of competent jurisdiction on statutory notice, and providing for notice of the hearing of a petition for letters of administration, etc., probate proceedings are proceedings in rem, and the court acquires jurisdiction of the property of the estate of a decedent and of the persons claiming any interest therein by the statutory notice of the hearing of the petition for letters; and other notices provided for are not jurisdictional, and a disregard thereof is a mere irregularity, assailable, in the absence of fraud, in a direct proceeding only.1 (Page 583.)

2. JUDGMENT-COLLATERAL ATTACK-PROBATE PROCEEDINGS-ORDERS SUBSEQUENT TO APPOINTMENT OF EXECUTOR OR ADMINISTRATOR— RIGHT TO FURTHER NOTICE. All parties in interest in probate proceedings who are brought within the jurisdiction of the court by the statutory notice of the hearing of the petition for letters of administration must take notice of the law; and though they may, as a general rule, rely on the presumption that the court will obey the law, they may not remain silent where the court erroneously departs from or disregards any of the provisions of the law, and then collaterally assails the erroneous acts. (Page 587.)

3. CONSTITUTIONAL LAW-DUE PROCESS OF LAW-PROBATE PROCEEDIt is within the power of the Legis

INGS-NOTICE-SUFFICIENCY.

lature, within reasonable bounds, to determine what shall constitute sufficient notice to give the court jurisdiction of the estate of a decedent, and what shall be sufficient to apprise those interested therein that the court will administer the estate and distribute the property among the parties in interest; and, where the notice is sufficient to accomplish this purpose, the notice constitutes due process of law. (Page 589.)

4. COURTS-CONTROLLING DECISIONS-DECISIONS OF THE FEDERAL SUPREME COURT. The decisions of the Federal Supreme Court, as to the notice in probate proceedings which will constitute due

1 Snyder v. Murdock, 26 Utah 233, 73 Pac. 22. In re Bunting Estate, 30 Utah 251, 84 Pac. 109.

process of law, are conclusive on the state courts. (Page 591.)

5. EXECUTORS AND ADMINISTRATORS-DISTRIBUTION OF ESTATE-DECREE-COLLATERAL ATTACK. Under Comp. Laws 1907, section 3779, providing that no decree affecting the title to realty made in a probate proceeding shall be void for want of notice where the executor or administrator was appointed by a court of competent jurisdiction on statutory notice, the failure to give the notice required by Comp. Laws 1907, section 3952, of the final settlement and distribution of decedent's estate, does not affect the validity of the decree of final distribution except on a direct proceeding. (Page 592.)

6. EXECUTORS AND ADMINISTRATORS-DECREE OF DISTRIBUTION-APPEAL. Under Comp. Laws 1907, section 3779, providing that no decree affecting title to realty made in probate proceedings shall be void for want of notice where the executor or administrator was appointed on statutory notice, and no objection to any subsequent order can be taken by a person claiming under de cedent on account of want of notice except by direct application to the probate court, or on appeal, one may attack a consent decree of final distribution rendered without notice and without his appearing in court by applying to the probate court and showing his interest in the estate, and thus prosecute an appeal, though only parties to the record may, as a general rule, appeal. (Page 593.)

7. VENDOR AND PURCHASER-MARKETABLE TITLE. Though title depends on a question of fact, the title is marketable where the fact is clearly established or is undisputed, so as to leave no room for reasonable doubt. (Page 595.)

8. VENDOR AND PURCHASER-MARKETABLE TITLE-EFFECT OF DECREE. Where a doubt as to title was based on an instrument directly affecting the title, so that if the instrument was construed one way a third person would have an interest in the premises, and if construed another way he would not have any interest, the title, as a general rule, will not be rendered marketable by a decree of court as to the rights of the parties to such instrument, unless all the parties in interest were before the court so that a construction placed on the instrument would be binding on all who may be affected thereby. (Page 595.)

9. VENDOR AND PURCHASER-MARKETABLE TITLE-DEPENDENT ON DECREE. Where the question of title depended on the construction of a general law, a court adjudicating such title might pass on the question, regardless of whether all the parties alleged to have any interest in the premises are before the court; and, where the court holds the law to be in favor of the title, the title I will be held marketable. (Page 595.)