¶1(dissenting): I cannot agree with the disposition made of this case. In my opinion the testimony given by Doctor Phillips was incompetent. Timely and proper objection was made to it, and immediately after the witness testified, a motion to strike was offered and denied. Rule No. 36 of this court recites:
“In trials before the court, without a jury, where evidence is admitted over proper objections, and not stricken out on timely motion therefor, it shall be presumed that such evidence was considered by the court and entered into its final decision in the case.”
¶2It fits the • situation here exactly. The trial court’s findings are set out in the above opinion. As I read the findings, there is nothing in or about them that shows the trial court did not consider the incompetent evidence in deciding the case.
¶3I believe the rule should be applied and the judgment of the lower court reversed.