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This is an appeal by plaintiff from a judgment entered in favor of defendants in an action brought by plaintiff as special administrator of the estate of William A. Smith, deceased, to set aside two deeds, executed by deceased to defendants, upon the grounds of undue influence and mental incompetency. The defendants, besides denying the two principal -charges, pleaded in bar of plaintiff’s recovery a former judgment rendered in a suit previously commenced by plaintiff as such special administrator against these defendants to set aside the same deeds upon the grounds of undue influence and fraud. The court in the action at bar found against the issues of undue influence and mental incompetency, and further found that said former judgment was a bar.

Plaintiff urges three grounds for reversal—first, that the former judgment is not a bar'; second, that the court erred in not compelling the defendant S. F. Smith, who was the attending physician of the deceased during his last illness and also one of the grantees named in the deeds, to testify as to the mental and physical condition of the said grantor at or about the time of the execution of the deeds; and, third, that the evidence is…