On Application for Rehearing. Respondent has filed a motion for rehearing in which her claims of error are all with reference to matters argued and decided, except as to questions of fact, and as to those matters we express no opinion, since the case must be tried again. It is also contended that the ruling in this case is contrary to that in the case of Smith v. Hanson, 34 Utah, 171, 96 P. 1088, 18 L.R.A. (N.S.) 520. These cases are clearly distinguishable since the declarations rejected in the case of Smith v.Hanson were offered "as direct evidence of the facts declared" which brought the offered testimony clearly within the general hearsay rule. We have no such case here as pointed out in the opinion, and no useful purpose could be served by restating the reasons therefor.
Appellant has also filed a motion for rehearing, and complains of our statement of the facts in the case. We have examined the alleged errors in the statement of the facts, and since the matters complained of could be of no controlling importance in the case, we refrain from taking time to discuss them separately. In an elaborate brief counsel complains of our construction of section 7123, Comp. Laws Utah *Page 273 1917, and argue that the opinion herein is contrary to the following cases: In re Cunningham Estate, 94 Wash. 191,161 P. 1193; Brucker v. De Hart, 106 Wash. 386, 180 P. 397;O'Connor v. Slater, 46 Wash. 308, 89 P. 885; Zackheim v.Zackheim (Colo. Sup.) 225, Pac. 268; Nicholson v. Kilbury,80 Wash. 500, 141 P. 1043.
An examination of these cases discloses that they do not involve the question decided in this case. Most of them simply hold that an administrator may call a witness otherwise barred by the statute. Our statute expressly gives that right. That question was not involved nor discussed in this case.
Appellant also complains of the order requiring costs to be paid out of the deceased's estate. Section 7041, Comp. Laws Utah 1917, reads as follows: "In the following cases, the costs of appeal are in the discretion of the court: (1) When a new trial is ordered." This section controls in this case and after further consideration we are convinced that each party should pay his own costs on appeal in this case, and it is therefore ordered that the original opinion be modified to read, "Each party to pay his own costs on appeal."
With this modification both motions for rehearing are denied.