
    McCarthy v. Talley.
    (139 N. W. 1012.)
    Opinion filed January 29, 1913.
    
      Butts & Sinness, of- Minnewaukan, for plaintiff and respondent.
    
      P. J. McGlory, of Devils Lake, and Stuart & Comstock, of Minne-waukan, for defendant and appellant.
   Pee Cueiam.

The same issues are involved in this action as were disposed of in the companion case of McCarty v. Kepreta, — L.R.A.(N.S.) —, 139 N. W. 992, in which an opinion has recently been filed granting a new trial to John Kepreta, appellant. That decision controls the disposition of this case. Accordingly, it is ordered that the judgment herein entered, and the order therefore, be set aside and vacated and a new trial in this action is granted. The costs of this appeal are to be assessed in favor of appellant and against respondent, but excluding those on the reargument had on the rehearing granted.

Spaldirg, Ch. J., and Beuce, J., dissent. For reasons stated in dissenting opinion in the case of McCarty v. Kepreta, filed this day, we dissent from the foregoing opinion of the court.  