HALLETa.', J., (orally.) . In the case of William Simpson the La Plata Mining' & Smelting Company, an action to recover damages for injuries received while in the service of the compnny, the plaintiff avers that the defendant,through its, superintendeut, brought into the smelting-house certain tanks or jackets, and stacl,ed them up, or placed them on end, near "'here the plaintiff was required to pass; in the performance of his' usual duties, in wlJeeling out slag, and that while lIe was passing these tanKs some one of them fell upon him and' injured him. He has not described with particularity the position of the tanks, and what neglect there was in the superintendent' in placillg them whei'e' they were. He states briefly that the tanks were placed there, and that one of them fell upon hMn. I think that he should give in detail the position of the tanks, so that it may be seen what the act of was on the part of the superintendent; how the tanks were placed, as evincing carelessness in the superintendent; and in what way they were left .so as to be' a source of danger to those who should pass by them. Certainly it is not enough to aver that the tanks were put there, and that one of them fell down. It may have been some extraordinary circumstance that caused the falling. If they were so placed that it might be reasonably expected they would topple over, he ought to .state that fact-describe the position so clearly that we may see born the complaint that the superintendent was careless in leaving them. in the way in which they W01'e left. . ' , Demurrer to complaint sustained, with lo:'we to plaintiff to amend in 30 days. . . .
MANVILLE '1:. BATTLE l'JOUNTAIX
(Circuit Court, D. Colorado.
KOT FOLLOWED BY
STxruTE. The legislature of a state may pre,cril'e the form of process, but in so doing the provisions of the constitution must he olBervcd; and where the constitution provides that every summons ,.,hall run in the name of the people, a summons in the form gh'en in the statute, but not in the name of the people, is deficient. 2. S.uIE-Smnroxs HlcTu·nxAnLE:....-GAnxlsIDIEXT. A garnishee in Colorado is entitled to 10 days in which to appe.lr and answer, "as in other summons in courts of rcconl: "and when the summons is made returnable lcitltm IV days from the date of service, it is a fatal defect.
At Law. Mr. Cmilpbell, for plaintiff. Henry T. Rogers, for garnishee. J., (orally.) Manville recovered a judgment against the Battle Company in the district court of Lake county, and took out execntion, and procured the Belden ilIining Company to be
THURSTON V.UNION INS. CO.
summoned as garnishee. That company entered a motion to quash the. summons and the return of the sheriff thereon, p,nd removed the cause into this court. The motion has been presented here. Objection is made that t.he summons does not runin the name of the people, as required by the constitution of the state, article 6, § 30. And the objection seems to be well taken. Unquestionably the legislature may prescribe the form ofpl'ocess, but in doing so the provisions of the constitution must be observed. This process appears to be in the form given in the statute, (2 Sessa 1879,) but it is defieient in that it does not run in the name of the people, as required by the constitution. That it is not in the form oiother process used in law actions is not important, and the circumstance that it was issued by the sheriff, rather than the clerk, is not important. In these particulars the authority of the legislature cannot be denied; but the constitution cannot be disregarded. . The statute also provides that in courts of record "the summons shall be made returnable, and be served the same as other summonses in courts of record;" and this seems to require that the time for answering shall be the same as in actions at law. In this instance the summons was made returnable within 10 days from the date of service. This is a fatal defect. The garnishee was entitled to 10 days in which to appear and answer, and if service was not made in the county where the judgment remained, then to a longer time. The motion will be allowed, and the cause dismissed.
MERCHANTS' INS. Co. of Newark. METROPOLE lNs.Co. SAllIE
HOWARD INs. Co.
(Circuit Court, D. New Hampshire.
FIRE POUC,-S1"ORE FIXTURES
'Vhen a fire insurance policy contains clauses excepting from the insurance .. store fixtures," and" store and other fixtures," the words" store fixtures" mean store fittings or fixed furniture, which are peculiarly adapted to make a room, a store rather than something else. 2.
8tore being the American word for shop or warehouse, is never nppliC'd to a factory; and fixtures in ... shoe factory are not covered by the term" store fixtures," in a policy of insurance.