Volume 12 — Colorado Court of Appeals Reports

<p> Appeal from the District Court of Pueblo County. </p>

<p>1. Practice — -Bill op Exceptions — Order Extending Time por Presenting.</p> <p>An order extending the time for presenting and filing a bill of exceptions beyond the limit of the term of court is a judicial order and must be made during the term. And where the court during the term, by order, fixed a time within which a bill of exceptions should bellied, an order made by the judge in vacation extending that time was void, and a bill presented and filed after the time as fixed by the original order but within the time as fixed by the attempted extension will be stricken out.</p> <p>2. Practice — Amendments—Bill of Exceptions — Becord.</p> <p>The action of the trial court in refusing to allow amendments offered to ' the pleading does not become a part of the record unless made so by bill of exceptions. The fact that the amendments offered were indorsed as filed by the clerk and copied into the transcript did not make the amendments or the action of the court thereon part of the record.</p> <p>3. Pleading — Defense.</p> <p>In an action to recover for work, labor and money expended about the working of a mine under the allegations of an express contract between plaintiff and defendant, a denial that plaintiff had “ paid out any money or moneys of his own in the development of the said mining property” would constitute no defense. So far as the defendant was concerned it was immaterial from what source the money expended by plaintiff was obtained, if money was expended upon the property under, the contract.</p> <p>4. Pleadings — Parties.</p> <p>In an action to recover for work and money expended in working a mine under an express contract between plaintiff and defendant, an allegation that a third party after purchasing one-fourth interest in the property undertook and promised to pay his proportional share of the expense, was not sufficient to make such third party a necessary party to the action since it does not appear that said third party was in any way connected with the contract between plaintiff and defendant.</p> <p>5. Pleading — Amendment—General Denial.</p> <p>In an action for work and money expended, under an express contract, in working a mine, where the answer was a general denial, it was not error to refuse to allow an amendment to the answer, to the effect that defendants were to be responsible for the expense of operating the mine in proportion only to their respective interests therein, since this could he shown, if true, under the general denial. 6. Practice — Suit to Vacate Judg-mbnt.</p> <p>A suit in equity to vacate a judgment at law and to grant a new trial does not take the place of a motion for a new trial so as to become a part of the record in the original suit, or to stay proceedings therein, at least, until final judgment therein has been rendered or some injunctive process issued. The appellate court will not remand a record for amendment so as to include in it the record of a suit in equity commenced in the district court to vacate the judgment appealed from.</p>

<p> jError to the District Court of Chaffee County. </p>

<p>1. Practice — Pleading—Motion to Strike.-</p> <p>A motion to strike out an amended complaint comes too late after tlie case is at issue on the facts.</p> <p>2. Pleading.</p> <p>A complaint that alleges that plaintiffs and defendants jointly owned a mine, and that defendants knowing- of one who was ready and willing to purchase it at a certain price represented to plaintiffs that they could sell it at a less price only, that plaintiffs relying on the false representations were induced to authorize defendants to sell the mine as agents for plaintiffs at the smaller sum for which they paid defendants a commission; that defendants sold the mine at the larger sum and divided the difference between them, stated a cause of action in tort only and could not he converted into a complaint on contract.</p> <p>3. Practice — Pleading—Election.</p> <p>Where an amended complaint states only a cause of action in tort, an order of the court requiring plaintiffs to elect whether they would rely on the tort or on the contract alleged in the complaint was a nullity, there being but one cause of action alleged there could be no election, and although the plaintiffs undertook to comply with the order of the court by electing to rely upon the contract, their action was ineffective and did not change the character of the amended complaint and furnished no grounds for a motion to strike out the amended complaint because it changed the cause of action from one of tort to one of contract.</p> <p>4. Evidence — Parol to Vary Written Instrument — Fraud.</p> <p>Parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument, but it is admissible to show that the execution of the instrument was procured by fraud.</p> <p>5. Pbactice — Pleading.</p> <p>The entire cause of action must be stated in the complaint, and a necessary allegation cannot properly appear for the first time in the replication, but where a necessary allegation omitted from the complaint is supplied by the replication, the irregularity is waived unless objection be made to the replication.</p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p> Appeal from, the District Court of Mesa County. </p>

<p> Error to the County Court of Hinsdale County. </p>

<p>1. Water Eights — Priorities—Pleading.</p> <p>In an action to determine tlie prior rights to the use of water for filling reservoirs, the complaint must allege tlie facts that constitute the plaintiff’s prior rights, whether the action be the statutory proceeding to adjudicate priorities or a suit in equity intended to accomplish the same purpose. A complaint that merely alleges that plaintiff has a priority is insufficient as that is a legal conclusion.</p> <p>2. Same.</p> <p>In an action to determine the prior rights to the use of water for reservoir purposes, a complaint that neither alleged the capacity of the , reservoir, nor the amount of water appropriated through it and applied to a beneficial use, was too indefinite to base a decree upon, and the court did not err in sustaining an objection to the introduction of any evidence under such complaint.</p> <p>3. Same.</p> <p>Although k party may have a prior right to the amount of water appropriated to and used from a reservoir as it existed in its natural state first utilized by him, he would not have such priority to any additional water attempted to be secured by enlargement of the reservoir after the rights of others had accrued by their appropriations, and in an action to determine the prior rights of parties a complaint that shows that the reservoir has been enlarged but fails to show the time or extent of such enlargement is fatally defective.</p> <p>4. Same — Pkescbiption.</p> <p>Without expressing an opinion as to whether the doctrine of prescription, as applied to the prior right to the use of water, prevails in Colorado, a complaint that merely alleges that, by usage for a certain period of years plaintiff has acquired and holds the right of • prescription, alleges a legal conclusion and is insufficient. If a prescriptive right to the use of water .can be acquired a complaint to set forth §uch right must allege the facts that constitute the adverse possession, and must negative the fact that during the time the stream contained sufficient water to supply both plaintiff and defendant.</p> <p>5. Same — Estoppel.</p> <p>In an action to determine the priority to the use of water a complaint that alleges that defendants for a long number of years subsequent to the rendition by the district court of- decrees as to the priorities of the ditches in question permitted plaintiff’s reservoir to be first filled without protest, and that plaintiff relying on such acts as a construction of the decree expended large sums of money in improvements about his reservoir and in bringing large tracts of land under cultivation, and that the water commissioners had recognized the rights of plaintiff as paramount to those of defendants, but fails to allege that during this time the supply of water subject to the use of the parties was insufficient to fill all the reservoirs both of plaintiff’s and defendants’ does not state a cause of action against defendants by estoppel to claim a priority over plaintiff’s reservoir.</p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p>1. Pleading — Negative Pkegnant:</p> <p>In an action for a balance due on an account for goods sold and delivered an answer that admitted the purchase of goods but denied that the total amount was as alleged and then denied that defendant was indebted to the plaintiff in the sum alleged, was a negative pregnant and raised no issue as'to the indebtedness or the goods alleged to have been bought so as to force plaintiff to prove his case.</p> <p>2. Pleading — Evidence.</p> <p>In an action for balance due on account for goods sold and delivered, it was error to permit defendant over objection to introduce evidence that certain bicycles delivered by plaintiff were without tires, unless he had in his answer plead a contract on plaintiff’s part to deliver complete and perfect machines and a failure to comply with such contract.</p> <p>3. Sales — Pleading—Evidence.</p> <p>In an action for balance due for goods sold and delivered, defendant pleaded that plaintiff had the exclusive handling of a certain bicycle and that plaintiff sold him wheels at a certain price, and that one of the conditions and provisions of the contract was that defendant should maintain the price stipulated in the contract, and as a further inducement to the purchase plaintiff agreed to maintain the price both at wholesale and retail, but that plaintiff in violation of the contract during the year and while defendant had on hand some of the wheels purchased, reduced the price both at wholesale and retail. Held that evidence in support of the above allegations was admissible under proper instructions as bearing on defendant’s rig'ht to recoup damages, not for the prospective profit defendant would have made but for the reduced value of the wheels on hand caused by plaintiff’s breach of contract.</p>

<p>1. Practice — Parties—Assignment for Benefit of Creditors— Mortgage — Action to Set Aside.</p> <p>Under our statute (Sess. Laws, 1885, p. 2Y, sec. 18), providing that a misappropriation of property by a debtor prior to a general assignment for the benefit of creditors shall not make the assignment void, but that the assignee may bring such action as is necessary to recover the property misappropriated, the assignee is the proper party to bring an action to set aside a mortgage made prior to the assignment and alleged to have been fraudulent. The creditors have no such right of action.</p> <p>2. Eraudulent Conveyance — Mortgage—Assignment for Benefit of Creditors — Preference of Creditors.</p> <p>A mortgage made in good faith to secure creditors is not rendered invalid by being followed by a general assignment for the benefit of creditors even though the mortgagor was at the time insolvent, and by the mortgage certain creditors were preferred over others.</p>

<p> Appeal from the County Court of Gilpin County. </p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p>1. Appeal Bond. — Action upon — Demand.</p> <p>An action may be maintained against the sureties upon an appeal bond . without having first made demand upon them.</p> <p>2. Appellate Practice — Immaterial Error.</p> <p>A judgment will not be reversed for an error that does not affect the substantial rights of the parties.</p>

<p> Appeal from the County Court of Lake County. </p>

<p>Abbiteation — Statutoby and Common Law.</p> <p>The statutory arbitration provided by code was not intended to abolish and does not abolish common-law arbitration in this state, but its purpose was to give the award of the arbitrators the effect of a judgment at law, enforceable in like manner as a judgment. An award under a common-law arbitration has not the effect of a judgment and is not self-enforcing, but it is binding on the parties thereto, and may be made the basis of an action to carry its terms into effect or pleaded in bar of an action upon the same subject-matter.</p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p>1. Attobneys at Law — Authobity.</p> <p>The general authority of an attorney employed to prosecute a cause extends only to the procuring and collecting the judgment. Without special authority he could not compromise or receive payment of the judgment in anything but money, and his client would not be bound by any such compromise or settlement.</p> <p>2. Judgments — Pabtial Assignment. '</p> <p>The rule that a creditor cannot split up his demand by assignment of a portion of it without the consent of the debtor, exists for the benefit of the debtor, and the creditor cannot raise the objection of want of consent of the debtor. Where a judgment creditor assigns a part of the judgment he cannot repudiate the contract, whether of not the debtor consented to the assignment.</p>

<p> Appeal from the County Court of Pueblo County. </p>

<p> Appeal from the District Court of Pueblo County. </p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p> Appeal from the District Court of Mineral County. </p>

<p>1. Revenue — State Wabbants — Mandamus.</p> <p>Where mandamus proceedings are instituted against the state treasurer to compel the payment of a warrant which is a preferred claim under an actual or continuing appropriation, and the petition exhibits the fact that there is money in the treasury applicable to the payment of the warrant, and the treasurer admits the money, but refuses payment on the ground that other warrants of the same class have been issued and duly registered in his office, sufficient to exhaust the money, that are entitled to priority of payment, it is incumbent on the treasurer to plead, and the burden is on him to prove a registry that would exhaust the money in the treasury. The opinion in Nance v. Stuart, 1 Colo. App. 510, commented on and explained.</p> <p>2. Revenue — Expense oe State Goveenment — Oeeiceb’s Salabies</p> <p>—Appbopbiation—Pbefebbed Claims.</p> <p>The expenses of the state government are preferred claims and must be paid out of the public revenue to the exclusion of all other claims against the state. The three departments of government stand on an equal footing so far as their claims against the public revenue is concerned, and the salaries of necessary clerks and assistants and the necessary expenses of carrying on the affairs of government constitute preferred claims equally with the salaries of officers whether the same are provided for by the general appropriation bill or are such as constitute a continuing appropriation against the public revenue.</p> <p>3. State Wabbants — Registbation—Evidence—Mandamus.</p> <p>In a mandamus proceeding against the state treasurer to compel him to pay a warrant where the defense was that a sufficient number of warrants of the same class had been registered prior to the one in controversy to exhaust the fund in the treasury applicable to such warrants, a copy of the register, that merely showed the number of the warrants, the amounts and the purposes for which they were issued, introduced in evidence was not sufficient proof of the warrants to establish them as prior registered claims to the one in controversy.</p>

<p> Error to the District Court of El Paso County. </p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p>1. Pleading.</p> <p>In an action against a city by a county assessor for compensation claimed under section 3353, General Statutes, for services performed in list- ■ ing and assessing the property of the city for municipal taxation, a complaint that fails to allege that plaintiff disclosed to the city council the nature and extent of his services at the time he presented his claim is insufficient to state a cause of action.</p> <p>2. Eees and Salabies — Compensation of Assessobs.</p> <p>The act of 1891 fixing the salaries of county assessors of counties of the first and second class provides the only compensation to ■which such assessors are entitled, and repeals so much of section 3353, General Statutes, 1883, as required cities and towns, in such counties, to allow the county assessors compensation for their work in relation to the assessment of property for municipal taxation.</p>

<p>Partnership — Contracts.</p> <p>Where plaintiffs and defendants had made an' agreement to enter into partnership forthe purpose of manufacturing lime and plaintiff being a mechanic was to construct the kiln for which defendants were to pay him three fourths the value of the work, the contract to pay-plaintiff was not a partnership agreement and an action at law could be maintained by plaintiff against defendant for the value of the labor performed.</p>

<p>1. Partnership — Dissolution— Notice — Evidence.</p> <p>In an action against a copartnership on account for goods sold and delivered, where the issue raised by the defense was a dissolution of the partnership and notice of dissolution to plaintiffs, it was an error to exclude evidence of correspondence between plaintiffs and defendants at the time of the shipment of the goods wherein plaintiffs inquired if there had been a dissolution and defendants, over their firm signature, replied that there was no dissolution. It was also error to exclude the testimony of one, familiar with the plaintiffs’ business, as to whom the sale was made and on whose credit the goods were delivered.</p> <p>2. Evidence.</p> <p>In an action upon account for goods sold and delivered it is proper to ask a witness how much is due, and whether or not it has been paid, if the witness knows it is proper for him to state the extent of the shipment, and whether the sum had or had not been paid.</p> <p>3. Evidence.</p> <p>In an action against a partnership for goods sold and delivered, where the partnership had been dissolved and succeeded by a corporation, and it appeared that the goods had been shipped to a branch house in the name of one of the individual partners, and it was claimed by defendants that the individual in whose name the goods were shipped was alone liable, it was proper to show in evidence the history of the entire accounts between the parties, the transfer to the corporation of the account and the reason for it, and whether or not there was any agreement to release the old firm for debts already incurred.</p> <p>4 Instructions.</p> <p>In an action on account for goods sold and delivered an instruction that “plaintiffs in this action are suing on a balance of an account, and it rests upon them to show from the evidence what that balance is; and if the evidence in this case is too uncertain for you to determine what balance, if any, is due from the defendants to the plaintiffs, then you must find the issues for the defendant,” was erroneous as tending to mislead the jury, as from the instruction the jury might infer that plaintiffs were bound to show the exact sum due, and, failing in that, were not entitled to recover anything.</p> <p>5. Partnership — Instructions—Waiver.</p> <p>In an action against a partnership where the defense was a dissolution of the partnership and notice to plaintiffs prior to the shipment of the goods, it was error to submit the' question to the jury to determine whether or not plaintiffs had waived their right to assert their ■claim against the old partnership by looking to their successor for the debt. If the defendants were liable plaintiffs could not waive their rights, and could only be deprived of their remedy against the defendants by releasing that right and accepting the new parties for the debt, and such novation must be based upon a consideration.</p>

<p> Error to the District Court of Fremont County. </p>

<p>Cities and Towns — Licenses —Pa wnbkokebs — Statdtoey Constbuction.</p> <p>Subdivision 10 of section 20, article 2 of the charter of Denver (Session Laws, 1893) giving to the city exclusive power to provide for the licensing of all trades, professions and amusements, and section 77, article 3 of same act providing that the Are and police board shall have full and exclusive authority to grant and refuse license for pawnbrokers, must be construed as limited by the general act of the legislature, relating to pawnbrokers, enacted on the same day as the charter (Session Laws, .1893, p. 360). An ordinance of the city council regulating the licensing of pawnbrokers to be valid must be subordinate to and in harmony with the provisions of the last named act.</p>

<p> Appeal from the County Court of Arapahoe County. </p>

<p>Judgments — Attorneys—Unauthorized Appearance.</p> <p>Where attorneys appeared for defendant, in an action, by mistake and -without any authority and no service was had upon defendant, a judgment taken against the defendant is void, and a suit may be maintained to remove cloud from title resulting from a claim under such void judgment without first proceeding in the original case to set aside the judgment.</p>

<p>Practice — Change on Venue.</p> <p>Parties may agree to the transfer of a cause to another county, but in the absence of such agreement a party wishing a change of venue must apply to the court by verified petition, and reasonable notice of the application must be given to the adverse party. An order changing the venue of a cause without such agreement and without such petition and notice was void and the court to whom the change was made acquired no jurisdiction and a judgment entered in the cause by such court was a nullity.</p>

A demurrer was overruled to a complaint which set up generally that the Savings Society was a corporation under the laws of Colorado, and that it executed a promise in these terms: “ The Savings Society promises to pay at its office in the city of Denver, to Cleland 1ST. Welch of Denver, Colorado, one thousand (1,000.00) dollars, eight years after the date hereof, together with the surplus to be then awarded hereon by the society.

<p>1. Estates oe Decedents — Widow’s Awabd.</p> <p>Under sections 1049 and 1050, General Statutes, providing for tlie setting aside of certain specified articles of personal property from the estate of a deceased husband for the benefit of the widow, and in case the inventory of personal property does not include the articles specified, or any of them, then that the widow may elect to take the value of such articles as are not found either in other property or cash, where the inventory showed that the estate only owned one-half interest in such of the specified articles as were found, the widow upon her election was entitled to the value of the entire list of articles, as fixed by the appraisers, in cash.</p> <p>2. Same — Evidence—Admissions.</p> <p>A statement in a creditor’s exceptions to an administrator’s report that it appeared from the record that the widow had elected to take cash in lieu of property, was a conclusive admission that she made her election, and so entitled herself to the money.</p>

<p> Error to the District Court of Arapahoe County. </p>

<p>1. Assignment — Cause oe Action — Personal Tort — Judgments.</p> <p>A cause of action under section 1868, General Statutes, against an officer, for treble the value of the property, for wrongfully attaching exempt property is an action for a personal tort and is not assignable. The assignment of a judgment against an officer procured under said statute, which was afterwards reversed on appeal, was , not an assignment of the cause of action nor of a subsequent judgment rendered in the cause.</p> <p>2. Practice — Pleading—Implied Promise to Pay.</p> <p>Where a party receives the money of another and applies it to his own use, the law implies a promise to repay, and it is not necessary to allege such implied promise in an action to’recover such money.</p> <p>3. Practice — Parties—Money Had and Received.</p> <p>Where money was paid into court and the clerk paid it out to a party who claimed it but who was not entitled to receive it an action could be maintained against the party who received the money by the party rightfully entitled to it, as for money had and received.</p>

<p>1. Summons — Return of Service not Conclusive.</p> <p>An officer’s return of service of summons is not conclusive. Any return, no matter what its recitals of service, may be attacked and shown to he false in a proper proceeding.</p> <p>2. Attorneys — Unauthorized Appearance — Judgments.</p> <p>The unauthorized appearance of attorneys for a defendant in an action does not give the court jurisdiction, and a judgment rendered against a defendant without service of summons and upon appearance entered without his authority or knowledge is a nullity.</p> <p>3. Practice — Motion to Set Aside Judgment.</p> <p>Where a judgment is rendered against a party upon a false return of service of summons, or by an unauthorized appearance of an attorney, the judgment may be set aside upon motion in the same proceeding as well as by an action in equity. The provision of the code requiring motions to be made within six months to be relieved from judgments rendered through mistake, inadvertence, surprise or excusable neglect, does not apply to a judgment rendered on a false return of service of summons or unauthorized appearance of ■ an attorney, but a motion in such case may be made at any time.</p> <p>4. Laches.</p> <p>Mere delay in bringing an action does not constitute laches, but some other element must combine with the delay. If during the unnecessary delay interests of third parties have attached, or the opposing party has heen induced to change his position, on the faith of the apparent situation — which he had no reason to doubt — so that to disturb the existing conditions would cause him injury, the delay is chargeable as laches. But eight months’ delay in moving to set aside a judgment obtained upon a false return of service is not chargeable as laches where the judgment creditor still owns the judgment.</p> <p>5. Judgments — Motion to Vacate.</p> <p>On a motion to vacate a judgment on the ground that no service of summons was had upon defendant, and that the appearance of counsel for defendant was unauthorized, the nature and merits of the defense will not be considered. To warrant the vacation of the judgment it is only necessary for the court to And that the summons was not in fact served, and that the appearance in defendant’s behalf was without authority.</p>

<p>1. Judgments — Voidable'—Collatebal Attack — Pbactice.</p> <p>Where a judgment is rendered against a party without service of summons but the record recites proper service it is classed as voidable and can be attacked only in a direct, and not in a collateral proceeding.</p> <p>2. Judgments — Injunctions—Dibect and Collatebal Attack.</p> <p>A proceeding to enjoin the enforcement of a judgment on the ground that no service of summons was had on the judgment debtor is a direct and not a collateral attack upon the judgment.</p> <p>3. Judgments — Motion to Vacate.</p> <p>Section 15, civil code, providing that a party against whom a judgment may have been rendered through mistake, inadvertence, surprise or excusable neglect may be relieved by motion for that purpose filed within six months, does not abrogate the right to an equitable action to vacate or enjoin the enforcement of a judgment rendered without service of summons.</p> <p>4. Judgments — Injunction.</p> <p>The enforcement of a judgment rendered without service of summons, or appearance of the party against whom it is rendered, will be enjoined in an equitable proceeding for that purpose.</p> <p>5. Judgments — Estoppel.</p> <p>A payment, upon a judgment obtained without service of summons and' without appearance, made to release property from execution and to avoid exjiense of litigation to have the invalidity of the judgment determined was not a recognition of the validity of the judgment and would not estop the party from afterwards proceeding to enjoin the enforcement of the judgment.</p> <p>6. Judgments — Peoceeding to Vacate — Laches.</p> <p>A delay of two years in proceeding to vacate a judgment rendered without service of summons and without appearance was not such laches as would deprive the judgment debtor of her remedy, where she thought she had been released from the judgment and where the rights of innocent third parties had not intervened and there was no showing of damage to the judgment creditor caused by the delay.</p> <p>7. PbACTICB — JUBISDICTION—JUDGMENTS—INJUNCTION—VENUE.</p> <p>The district court has jurisdiction to entertain an application for writ of in j unction to restrain the enforcement of an invalid judgment rendered in another county, and in the absence of an application for change of venue seasonably made the parties waive their privilege to have the proceedings conducted in the county where the judgment was rendered.</p>

<p>1. Landlobd and Tenant — Liability fob Defective Building.</p> <p>There is no implied contract in a lease that the building let is well constructed, or safe, or reasonably fit for occupancy, or that it will continue in habitable condition, but a landlord is liable to his tenant for damage resulting from defects in the building known to the landlord or of which he ought to have known, and not known to the tenant and of which the tenant had not equal means of knowledge.</p> <p>2. Same.</p> <p>Where a lease is taken to that part of the building where a dangerous condition exists, the lessee is chargeable with notice of patent defects and the landlord would not be liable to the tenant for damage from such defect unless upon express warranty or unless the landlord with knowledge of the defect fraudulently concealed it from the tenant, but a tenant of a room in an upper story is not chargeable with notice of defects in the foundation or basement and may assume that the lessor is acquainted with his own building and would not knowingly lease to him premises dangerous on account of some defect in a remote part of the building.</p> <p>3. Negligence.</p> <p>It is not negligence to fail to discover a concealed weakness in a wall where its appearance indicates soundness and strength.</p> <p>4. Landlobd and Tenant — Liability fob Defective Building.</p> <p>Where a landlord purchased an interest in a wall for a partition wall, to which he built, and there was no outward appearance of weakness in the wall, he was not liable to his1 tenant for damages caused by an unprecedented flood which filled the cellar of the adjoining building and by lateral pressure broke the foundation of the partition wall.</p>

<p>1. Chattel Mortgages — Replevin.</p> <p>Where the mortgagee in a chattel mortgage took possession of the mortgaged chattels for condition broken in failure to pay part of the purchase price, and the mortgagor claimed that the damage on account of breach of warranty by the mortgagee in delivering damaged property was equal to the unpaid balance of the purchase price, and that therefore the mortgagor owed nothing, an action in replevin by the mortgagor against the mortgagee to recover hack the chattels was a proper action.</p> <p>2. Pleading — Pbiosumption—Pbactice in Justice Court.</p> <p>On appeal from a judgment in an action of replevin commenced before a justice of the peace where the record does not disclose the pleading, it will he presumed that such matters were pleaded by either party as could have been pleaded under that form of action, and upon the evidence disclosed.</p> <p>3. Evidence — Exclusion oe AVitnesses — Discretion op Trial Court.</p> <p>The exercise of its discretion by the trial court in refusing to permit a witness to testify because of a violation of the rule excluding witnesses from the courtroom will not be disturbed, where the witness refused was defendant’s daughter, and defendant made no showing purging himself of knowledge of or connection with the violation of the rule, although defendant’s counsel made affidavit purging himself of all knowledge of or connection with the violation.</p> <p>4. Replevin — Demand.</p> <p>A demafid for the return of the property before instituting a suit in replevin is not necessaxy where the defendant claims the property by superior right, or where the facts in evidence show that a demand would have been unavailing.</p>

<p>1. Practice — Notice—Demurrers.</p> <p>The provisions of chapter 36 of the code, requiring notice to be given of the hearing of motions, do not apply to demurrers. A demurrer is not a motion and the code nowhere requires notice to be given of its hearing except in vacation.</p> <p>2. Notice — Presumption.</p> <p>Where notice is required, and the record does not show that it was not given, notice will be presumed.</p> <p>3. Notice — Demurrer—No Prejudice.</p> <p>Where an objection is raised to the overruling of a demurrer on tlie ground that no notice of the hearing was given, and the record fails to show that the party was prejudiced thereby, tbe objection will be overruled for that reason if no other.</p> <p>4. Practice — Hearing op Cause — Absence oe Party.</p> <p>Under section 176 of the code, when a cause is regularly reached on the calendar, either party may bring tbe issue to trial or bearing, and in the absence of the other party, and unless the court otherwise direct, the party appearing may proceed with his canse. And this provision of the code applies to issues of law upon demurrer as well as issues of fact.</p> <p>5. Court Rules — Notice—Presumptions.</p> <p>Courts of record have power to make rules governing their practice and procedure in all matters not provided for by law, and under this authority notice to the adverse party might be required before permitting either party to call up a demurrer for hearing, but where no such rule is cited it will be presumed none existed, or if it did that it was complied with.</p> <p>6. Practice — Demurrers—Rule to Plead oyer.</p> <p>After passing on a demurrer there is no restriction or limitation as to the time within which tbe unsuccessful party shall be ruled to plead over. It is a matter wholly within the discretion of the trial court, and unless this discretion is manifestly abused it will not he interfered with.</p> <p>7. Practice — Demurrer—Rule to Plead.</p> <p>Where in the absence of defendant his demurrer to plaintiff’s complaint was overruled and he was required to answer on the same day, and failing to answer default was entered and judgment taken by plaintiff, and the record fails to show that defendant had any defense or would have filed an answer if given time and no effort was made by defendant to set aside tbe default or judgment, or to obtain relief in any manner -under section 75 of the code, it will be presumed that the discretion of the court was not abused.</p>

<p>1. Appellate Practice — Assignment of Error.</p> <p>An objection to a complaint on the ground that it contains no statutory prayer will not be considered on appeal where there is no assignment of error based on that objection, nor will such objection be considered when no objection was raised to the complaint in the lower court on that ground.</p> <p>2. Forcible Entry and Detainer — Demand of Possession.</p> <p>In an action of forcible entry and detainer for possession of premises purchased at a foreclosure sale under a deed of trust, it was not necessary that a demand for possession should name a specific day on which the property should be surrendered.</p> <p>3. Forcible Entry and Detainer — Validity of Trust Deed— Answer.</p> <p>In an action of forcible entry and detainer for possession under a purchase at a foreclosure of a deed of trust, the defendant cannot raise the question of the validity of the trust deed under a simple answer to the action of forcible entry and detainer.</p> <p>4. Evidence — Proof of Execution of Instrument.</p> <p>Where an instrument whose validity is not in issue is to be introduced in evidence, its execution maybe proven by any competent evidence. It need not be proven by the subscribing witness.</p> <p>5. Deed of Trust — Subscribing Witness — Proof.</p> <p>It is not necessary that a subscribing witness to a deed of trust should have subscribed at the request of the grantor in order to qualify such subscribing witness to testify to the execution of the instrument.</p>

<p>Sales — Conversion—Parties.</p> <p>Where goods were shipped in accordance with the order of the purchaser, and upon arrival were refused and the carrier sold them for freight charges, the seller could not maintain an action for conversion against the carrier. If there was a conversion it was a conversion of the goods of the purchaser and not of the seller.</p>

<p> Error to the District Court of Otero County. </p>

<p>1. Negligence — Employees’ Liability Act — Statutoby Constbuction.</p> <p>The employers’ liability act (Laws, 1893, p. 129) providing for the recovery of damage sustained by agents, servants and employees resulting from negligence of fellow-servants, and requiring plaintiff to give notice of the injury within sixty days, applies only to actions brought by an agent, servant or employee, and has no application to an action brought by a mother for the death of a son who was an employee of defendant.</p> <p>2. Same — Constitutional Law.</p> <p>The employers’ liability act (Laws, 1893, p. 129) in so far as it attempts to affect actions by others than agents, servants and employees is unconstitutional and void, as in contravention of section 21, article 5 of the constitution requiring the subject of an act to be clearly stated in the title thereof.</p>

<p>1. Contracts — Measure op Damage.</p> <p>The measure of damages for breach of contract for sale of chattels by failure of the vendor to deliver the goods, is the difference between the market value at the time and place of delivery and the price contracted to be paid.</p> <p>2. Contracts — Measure op Damages — Burden of Proof.</p> <p>In an action for damages for breach of contract for sale of goods, by failure of the vendor to deliver the goods, the burden of proof is on the plaintiff to show that he has been damaged and the amount of such damages with reasonable certainty. If there is a failure in this respect, even though a breach of the contract is clearly shown the plaintiff could only recover nominal damages.</p> <p>3. Evidence — Market Vadue.</p> <p>Where defendant contracted to sell a certain number of boxes of soap to contain a certain number of twelve-ounce bars at a certain price per box, a letter of defendant in which it was stated that they did not manufacture twelve-ounce bars and that the price contracted was the lowest at which they could sell the ten-ounce bars, .was not evidence from which the market value of twelve-ounce bars could be inferred.</p> <p>4. Evidence — Market Value — Presumptions.,</p> <p>In an action for damages for breach of contract for the sale of a number of boxes of soap to contain a certain number of twelve-ounce bars at a certain price per box, where the defendant testified that they did not manufacture twelve-ounce bars and that the price contracted was the lowest price at which they could sell ten-ounce bars, in the absence of any evidence as to the market value of twelve-ounce bars, the contract price will be presumed to be the market value and from the evidence the market value of twelve-ounce and ten-ounce bars was the same.</p>

<p> ¡Error to the District Court of Pueblo County. </p>

<p> Appeal from the County Court of Arapahoe County. </p>

<p>1. Buildin® and Loan Societies — Withdrawal.</p> <p>Where the by-laws of a building and loan society provide for the withdrawal of members upon sixty days’ notice of intention to withdraw, a member giving notice of his intention to withdraw, at the expiration of the term of notice, ceases to be a member of the society as between himself and other shareholders, and becomes a creditor of the society to the amount of the withdrawal value of his stock.</p> <p>2. Same.</p> <p>The withdrawal value of stock in a building and loan society is determined by the by-laws of the society in force at the time of withdrawal and when the notice of withdrawal has been perfected the right of the withdrawing member to payment in accordance with the by-laws becomes a vested right and cannot be affected by subsequent by-laws or action of the society.</p> <p>3. Same — Refusal to Pay.</p> <p>An offer by a building and loan association to pay to a withdrawing member a less sum than he is legally entitled to at the time his notice of withdrawal is complete, is such a refusal to pay the sum actually owing, as would authorize the institution of a suit.</p> <p>4. Same — Evidence.</p> <p>In an action by a withdrawing member against a building and loan society for the withdrawal value of his stock a notice by the society that the money was on hand ready for the payment of his claim was sufficient showing that money from which his claim might be paid was in the treasury of the society at the time his suit was commenced. The society having been in possession of the requisite fund before the commencement of the suit it was not incumbent on plaintiff to show that the fund remained in the treasury at the time but it will be presumed to have remained there subject to his claim under the by-laws.</p> <p>5. Same.</p> <p>Where a member of a building and loan society gave notice of his withdrawal and there were funds on hand to pay his claims, but they disagreed as to the amount due on his stock it was the duty of the society to keep the money subject to his claim till the amount due was determined, and it was no defense to an action against the society on the claim,that the plaintiff had refused to accept a smaller sum offered him and the money had been used for other purposes.</p> <p>6. Same — Evidence—Annual Report.</p> <p>In an action against a building and loan society by a withdrawing member for tbe withdrawal value of his stock, the annual report of the society made at the time of his notice of withdrawal showing the value of the stock on the company’s books was competent, relative and material evidence to prove the withdrawal value of the stock.</p> <p>7. Same — Intebest.</p> <p>Where a member of a building and loan society gave notice of his withdrawal and the society having money on hand to pay the withdrawal value of his stock offered to pay him a smaller sum than the amount due in settlement of his claim which he refused, he was entitled to recover interest at the legal rate on the amount due from the time the society having money on hand refused to pay his claim, although the by-laws of the society provided that the stock should not draw interest after notice of withdrawal.</p>

<p>Appeal from the District Qourt of Boulder Bounty.</p>

<p> Appeal from the District Court of El Paso County. </p>

<p> Error to the District Court of Pueblo County. </p>

<p> Error to the District Court of Pueblo County. </p>

<p>1. Savings Banks — Statutoey Consteuction.</p> <p>In the savings bank act authorizing the directors to invest one half of the deposits, on personal security, on bonds and stocks of certain kinds and on bonds secured by mortgage on unincumbered real estate worth at least double the amount of the loan, the phrase “ double the amount of the loan” applies only to loans made upon real estate and not to loans made upon, and invested in, other securities specified in the act</p> <p>2. Savings Bank — Action Against Directors — Pleading.</p> <p>In an action against the directors of a savings hank for violation of the statute by loaning money on real estate not worth double the amount of the loan, the complaint must allege that the real estate on which the loan was made was not worth double the amount of the loan at the time the loan was made. An allegation that upon foreclosure of the mortgage the property sold for less than the amount of the loan is insufficient to state a cause of action.</p> <p>3. Same.</p> <p>Under the savings bank act the authority to the directors to invest the deposits on personal security includes an authority to make loans to individuals and to take their personal notes therefor. In an action against the directors of a savings bank an allegation that they loaned money to certain persons on the personal obligation or note of the persons named, states no cause of action under the statute.</p>

<p>1. PABTSTEBSIIIP — INSTEUCTIOITS.</p> <p>In an action against defendants as copartners where the fact of copartnership was established by a written agreement and the only other evidence bearing on the question was as to whether the contract had been abrogated by a subsequent oral agreement it was error for the court to instruct the jury as to what constituted a partnership with reference to a participation of profits. The question of copartnership under the written contract was a question of law to be determined by the court and not by the jury.</p> <p>2. Same.</p> <p>In an action against defendants as copartners where the copartnership was established by a written contract it was error to leave it to the jury to determine whether a subsequent modification changed the agreement or modified their relations or altered the responsibility of the parties. This was a question of law fox; the court. The jury sho.uld have heen told what in law would amount to an abrogation or rescission of the contract and if they found certain facts, which the court should have specified, then the contract was abrogated.</p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p>1. Pees — Constables—Executing Wbit.</p> <p>Por executing a writ of restitution, in a case where there is no money to collect, in a county of the first class, a constable’s fees cannot exceed $6.00 as that is the limit of the total fees, exclusive of commissions on money collected in any civil action in such county. The tearing down and removal of houses in the execution of a writ of restitution is no part of the official duties of a constable, and to collect compensation for such service from the plaintiff in the writ the constable must show a contract of employment for that purpose.</p> <p>2. Instructions.</p> <p>An instruction which assumes that evidence was given which was not, or which misstates the evidence that was given is misleading to the jury and is fatally erroneous.</p>

<p>Appeals — Parties—Executors—Wills.</p> <p>Where the executor of a will brought an action for the purpose of having the will construed to determine which of two sets of legatees a certain fund should be paid to, both of whom claimed the fund, and all the legatees being made parties the court decided the matter in favor of one set of the legatees, the executor had no such interest in the matter as would entitle him to an appeal, whether the judgment of the court was right or not as between the legatees. Only the interested parties, the defeated claimants of the fund, were entitled to have the judgment reviewed.</p>

<p>1. Contbacts — Specific Pebfobmance.</p> <p>Defendant, the owner of a mining claim, contracted with plaintiffs to deed them a certain interest in the claim in consideration that they should sink a shaft to a certain depth and obtain a patent at their expense, conditioned that the patent should be obtained by a certain time. Plaintiffs sunk the shaft and at defendant’s request paid him part of the money to procure patent, and offered to pay him the balance whenever he wanted it. At defendant’s suggestion the procurement of the patent was postponed until winter, at which time plaintiffs tendered him the balance of the money, which he refused on the ground that it was too late. Held that the contract of plaintiffs to procure patent should be construed to mean to furnish the means to procure it in defendant’s name. That defendant by postponing the time himself, had waived the condition that the patent should be obtained by a certain time, and that plaintiffs were entitled to a deed upon payment to defendant of the balance necessary to procure patent, and they were not required to wait till the patent issued before bringing suit for performance of-tlie contract.</p> <p>2. Contract — Construction.</p> <p>In a contract to convey land by a good and sufficient deed tbe phrase “good and sufficient deed ” must be construed with referen ce to the title held by the grantor. If he has only a possessory title the contract is satisfied by a deed which conveys that title.</p>

<p>Corporations — Proof of Corporate Existence — Estoppel.</p> <p>One wlio contracted with, a lumber company for lumber under its corporate name, and in settlement acknowledged his indebtedness to the corporation, is estopped to question the capacity of the corporation to sue in an action for the price of the lumber, and cannot object that plaintiff’s corporate existence was not proven.</p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p>1. Partnership — Evidence.</p> <p>Stricter evidence is required to establish a partnership in an action between alleged partners than when the action is between the partners and a third party.</p> <p>2. Practice — Evidence.</p> <p>In an action for wages where the defense was that a partnership existed between plaintiff and defendant and the case was tried upon the conceded theory that if the partnership was established the action must fail it was not error to refuse to permit defendant to testify that no profits accrued from the transaction.</p>

<p>Contbacts — Minin» Lease — Assignment.</p> <p>Where the lessees of a mining claim assigned their lease, the assignee to work the claim and pay them out of the net proceeds, but the assignment did not require continuous work or forbid subletting, and after the assignee had worked the mine the greater part of the time of the lease without realizing any net proceeds, he let a third party work it the balance of the time who also failed to realize any net proceeds, in an action against the assignee for the purchase price, held that plaintiffs to recover must show that defendant had voluntarily put it out of his power to comply with the contract and realize the net proceeds, and that the fact of his permitting a third party to work the mine was not such showing.</p>

<p>1. Fbaudulent Conveyance — Pbactice.</p> <p>In an action to set aside a conveyance as in fraud of creditors and to liave the property subjected to the debts of the grantor, where the defendant presented no issue in the trial court as to the value of improvements claimed to have been put on the property by defendant after the conveyance, nor offered any evidence, nor asked the court to make any findings on that question, he is not in a position to raise that question on appeal and ask a reversal of the judgment on that matter.</p> <p>2. Fbaudulent Conveyance — Insolvency.</p> <p>To prove that a grantor in a voluntary conveyance was at the time insolvent, so as to render the conveyance void as to creditors, it is only necessary to show that the amount of the debts so nearly approximates the value of property owned by the grantor that the conveyance would have a direct tendency to impair the rights of creditors if they should attempt to enforce collection by judicial process.</p> <p>3. Same.</p> <p>To sustain a voluntary conveyance as against existing creditors, the property remaining to the debtor after such conveyance must be clearly and amply sufficient to satisfy his debts. To prove insolvency in such case it is only necessary to show that the debtor was embarrassed and in doubtful circumstances, and his solvency or insolvency may be judged by whether or not the property retained after-wards proved sufficient to pay the debts.</p> <p>4. Conveyance — Recobd—Notice—Limitation.</p> <p>The recording of a deed of conveyance is constructive notice only to persons claiming under the same grantor and under the same chain of title. The recording of a voluntary conveyance is not constructive notice to creditors of the voluntary character of the instrument, or of the insolvency of the grantor, so as to start the statute of limitation against an action to set aside the conveyance as in fraud of creditors.</p> <p>5. Limitation — Fbatjd.</p> <p>Under section 2114, Gen. Stats., providing that bills for relief on the ground of fraud shall be filed within three years from the time of the discovery of the fraud, before the statute of limitation begins to run against a creditor in an action to set aside a fraudulent conveyance, the creditor must have knowledge of the facts going to constitute the fraud. If the conveyance was voluntary he must have knowledge of that fact and of the insolvency of his debtor.</p> <p>6. Limitation — Cause ob Action.</p> <p>Under section 2174, Gen. Stats., requiring bills for relief on the grounds of fraud to be filed within three years after the discovery of the fraud the statute of limitation does not begin to run until the cause of action has accrued, although the party applying for relief may have discovered the fraud before the time the cause of action accrued. '</p> <p>7. Limitation — Fbaudulent Conveyance.</p> <p>The statute of limitation will not begin to run against an acti n by a creditor to set aside a voluntary conveyance until his right of action has accrued by reducing his claim to final judgment and the return of his execution nulla bona, and the fact that he might have sued out a writ of attachment does not affect the matter.</p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p>Pleading.</p> <p>A demurrer to a complaint cannot be sustained on the ground that the complaint does not contain a certain allegation when that allegation was stricken out of the complaint on defendant’s motion.</p>

<p> Appeal from the District Court of Las Animas County. </p>

<p> Appeal from the District Court of Gunnison County. </p>

<p>1. Contbact — Option—Sale.</p> <p>A contract of option to purchase land becomes a positive contract of sale when the purchaser has exercised his option by making the first payment under the contract.</p> <p>2. Contbaots — Sale—Mechanics’ Liens.</p> <p>Under a contract of sale of real estate that stipulated that the purchaser should make certain improvements on the property, the interests of the vendor are subject to a mechanic’s lien for work and materials furnished in making the improvements Under a contract with the purchaser.</p> <p>3. Contbaots — Sale—Peincipal and Agent — Mechanics’ Liens.</p> <p>Under a contract of sale of real estate that requires the purchaser to make certain improvements, the purchaser is the agent of the vendor for the purpose of making the improvements, so that a notice of an intention to file a mechanic’s lien for labor and materials furnished in making the improvements, served upon the purchaser, • was notice to the vendor.</p> <p>4. Mechanics’ Liens — Notice.</p> <p>The statute requires no particular form of notice of intention to file a mechanic’s lien, and the fact that the notice was addressed to the agent as owner would not vitiate the notice.</p> <p>5. Mechanics’ Liens.</p> <p>In an action to enforce a mechanic’s lien against the vendor for labor and materials furnished in making improvements under a contract of sale that required the purchaser to make improvements to a certain value, it was not necessary to allege or prove that the purchaser had not exceeded that amount in making the improvements. If the owner of the property sought to escape liability on the ground that his agent had exceeded the limits of his powers in making the contract for the improvements, it was his duty to aver and prove it.</p> <p>6. Mechanics’ Liens — Mining Claims.</p> <p>Under a contract of sale of certain mining claims and a mill site that required certain improvements to be made by the purchaser on the mill site, a mechanic’s lien for labor and material furnished in making the improvements would extend to the mill site only and not to the mining claims.</p>

<p>1. Courts of Record — Rules.</p> <p>Courts of record have the inherent power as well as authority under the code to make and enforce rules as to the transaction of their business, and the only restriction upon that power is that the rules shall be reasonable. A rule providing for the dismissal of suits in which no progress has been made and entered of record for the period of one year or more is not unreasonable.</p> <p>2. Practice — Dismissal of Actions — Discretion.</p> <p>Motions to dismiss actions for want of diligence of plaintiffs in the prosecution of suits, are addressed to the sound discretion of the trial court, and unless it manifestly appears that there has been an abuse of discretion, or that it has been arbitrarily exercised, the appellate court will not interfere with the action of the trial court in such matters.</p> <p>3. Practice — Rules—Presumption.</p> <p>District courts are presumed to have complied with their own rules of practice, unless the contrary is clearly shown.</p>

<p>1. Conteacts — Sales—Eobbeitube.</p> <p>Where a contract for the sale of land upon annual payments, provides that in case of failure of the purchaser to make any annual payment he shall forfeit all money paid on the contract, the vendor cannot insist on a forfeiture where he himself is unable to perform his part of the contract for want of title.</p> <p>2. Same.</p> <p>A contract for the sale of land upon annual payments provided for a forfeiture of all money paid by the purchaser upon failure to make any annual payment. Afterwards a subsequent agreement was indorsed upon the contract to the effect that title to the land was in the United States and that if the vendor should fail to procure a patent from the United States the purchaser should receive back all money paid on the contract -without interest in full settlement of all obligations under the contract. Upon failure of the vendor to procure the patent the purchaser was entitled to recover the amount of money paid on the contract notwithstanding he had defaulted in some of the annual payments.</p> <p>3. Sealed Contbacts — Modification.</p> <p>Sealed contracts, especially those as to time and conditions of payment, may be abrogated, waived or varied by parol, and the modifications shown by oral testimony.</p> <p>4. Contbacts — Limitation.</p> <p>Where a contract for the sale of land provided that if the vendor failed to procure a patent to the land the purchaser should receive back all money paid on the contract, limitation would begin to run against an action by the purchaser to recover back money paid, from the time a patent to the land was issued to another party, and not from the time the money was paid.</p>

<p>1. Bills and Notes — Pbima Facie Case.</p> <p>In an action on a promissory note by an indorsee where the plaintiff shows that he acquired the note before maturity in the usual course of business and introduces the note, his case is fully established, and the burden is on the defendant to establish the defense that the note was given as an accommodation to the plaintiff and without consideration.</p> <p>2. Evidence — Relevancy.</p> <p>In an action by a bank as indorsee of a promissory note where the defense was that the payee as agent of the indorsee had procured defendant’s signature to the note as an accommodation to the bank and without consideration, a statement of the bank’s account with the payee of the note was irrelevant to establish any part of the defense.</p> <p>3. Bills and Notes — Accommodation Paper.</p> <p>Where a negotiable accommodation note is received in payment of an antecedent debt, or as collateral security for a debt created or a purchase made at the time of the transfer, or the transfer is made to secure a debt not due, or if due, the collection is thereby delayed, and under all other similar conditions, the holder taking the note without notice and for value, acquires an unimpeachable title, and no equity existing- between the original parties to the note can defeat its collection.</p> <p>4. Bills and Notes — Collatebal Seoueity — Good Eaith.</p> <p>One who takes a note as collateral security for an antecedent debt is a holder in good faith and for value, and his right to recover cannot be defeated by proof that the note was given without consideration and as an accommodation to the one to whom it was originally issued.</p> <p>5. Bills and Notes — Collatebal Seoueity — Instbuctions.</p> <p>In an action on a promissory note where the evidence shows that it was acquired by discount in the regular course of trade, it is error to instruct the jury on the theory that it was received as collateral security.</p> <p>6. Banks — Dibectobs and Oeficees — Agency.</p> <p>A banking corporation can transact its business only through its board of directors and its regularly constituted officers.</p> <p>7. Instbuctions.</p> <p>It is erroneous to instruct the jury upon questions and issues not raised by the evidence.</p> <p>8. Evidence — Agency—Declarations oe Agent.</p> <p>Agency cannot be established by the declarations of an alleged agent, and it is erroneous to admit in evidence the declarations of an alleged agent until his agency has been otherwise established.</p> <p>9. Agency — Similar Transactions.</p> <p>The authority of an alleged agent cannot be shown by proving similar transactions between the agent and other parties.</p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p>1. Wills — Pbobate—Evidence—Appeal to Disteict Coubt.</p> <p>In the probate of a will in the first instance in the county court, if two or more of the subscribing witnesses testify that they believe the testator was at the time he signed the will of sound mind and memory, the court is precluded from making any further inquiry as to the testamentary capacity of the testator. But upon appeal to the district court from a judgment of the county court either admitting or refusing to probate a will, neither the proponent nor the contestant is limited to the testimony of the subscribing witnesses, but may introduce any competent testimony as to the mental capacity of the testator.</p> <p>2. Wills — Subscbibin» Witnesses.</p> <p>The mere fact of attesting a will by subscribing witnesses is not an affirmation that they believe the testator to be of sound mind and memory, and their testimony on probate of will denying mental capacity is not contradictory.</p> <p>3. Wills — Evidence—Mental Incapacity.</p> <p>The facts of this case discussed and held sufficient to prove the mental incapacity of the testator to execute a will.</p>

<p> Appeal from the District Court of El Paso County. </p>

<p> Error to the District Court of Arapahoe County. </p>

<p> Appeal from the District Court of Montrose County. </p>

<p>Pbactice — Summons.</p> <p>Section 34, civil code, provides that a summons shall not be held void because of an insufficient statement of the relief demanded, and section 18 provides that the court shall at every stage of an action disregard any error in the pleading or proceeding that does not affect the substantial rights of the parties. Under these provisions, it was error to quash a summons because the Christian name of the plaintiff was given as “Sam,” while it was given in the complaint as “Samuel,” where the recitals of the summons were sufficient to identify the party. Also, it was error to quash because the summons stated the amount of the relief demanded at ISIS, while the complaint stated it at $500, where the language of the summons and complaint showed that they were both based on the same cause of action.</p>

<p> Appeal from, the District Court of Arapahoe County. </p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p> Appeal from the District Court of Pueblo County. </p>

<p> Appeal from the District Court of La Plata County. </p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p> Appeal from the District Court of Arapahoe County. </p>