Volume 13 — Colorado Court of Appeals Reports

<p>1. Costs — Attorney’s Fee — Excessive. Under the mechanic’s lien act of 1893, providing for the taxing of an attorney fee as cost in case where plaintiff obtains judgment of foreclosure, $400 was an excessive fee to tax in a suit brought to foreclose for claims amounting to $2,000, in which there was a default judgment.</p> <p>2. Same.</p> <p>Under the mechanic’s lien act of 1893, providing for the taxing of an attorney fee where plaintiff shall obtain a judgment and decree for foreclosure, the fee taxed should be based upon the amount for which the foreclosure decree is entered, and not upon the amount for which suit was brought embracing a number of claims settled before judgment.</p> <p>3. Constitutional Law — Attorneys’ Fees — Costs.</p> <p>Section 18 of the mechanic’s lien act of 1893 (Sess. Laws, 1893, p. 325), providing that in all suits for the foreclosure of liens, under said act, in which plaintiff shall obtain a judgment and decree for foreclosure, there shall he taxed as costs, in addition to other costs, an attorney fee to be fixed by the court, is in contravention of the constitution of the United States and void.</p>

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

<p>1. Life Insurance — Husband and Wife — Fraudulent Conveyance.</p> <p>The proceeds of policies of life insurance on the life of a husband for the benefit of and payable to the wife are not subject to the debts of the husband unless it be to the extent of premiums paid after the debts were contracted, and during the husband’s insolvency.</p> <p>2. Same.</p> <p>Where a husband was indebted to his wife in a sum greater than the amount of premiums paid on insurance on his life for the benefit of his wife, the payments will be presumed to have been made in payment of such indebtedness, and the creditors of the husband would have no right to recover back such premiums notwithstanding they were made during insolvency of the husband, and after the debts were contracted.</p> <p>3. Same.</p> <p>The fact that a policy of life insurance on a husband’s life payable to the wife was issued on the distributive plan, the distribution period being at the end of twenty years, at which time if living the husband had an option to apply the accumulated surplus to the purchase of an annuity on his life or continue the policy for the original amount and withdraw in cash the accumulated surplus apportioned to it; or to withdraw in cash the entire equity, or to convert the entire equity into a paid-up policy, did not make the proceeds of the policy subject to the husband’s debts, where he dies before the expiration of the twenty years.</p>

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

<p>Cities and Towns — Public Improvements — Duties of Board of Public Works and Mayor.</p> <p>Under the charter of the city of Denver, the hoard of public works is vested with the exclusive management and control of the construction and maintenance of all public improvements. Section 43, article 7, provides that payment for improvements shall be made in public improvement bonds or warrants issued by the treasurer upon estimates and orders of tlie board approved by the mayor. The mayor has no discretion in approving the estimates of the board. His duties are mandatory, and a writ of mandamus was properly issued to compel him to approve an estimate by the board under a contract for grading a street.</p>

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

<p>1. Appellate Practice — Review oe Evidence.</p> <p>A cause on appeal will not be reviewed on the evidence where the record does not contain all the evidence introduced in the trial of the case.</p> <p>2. Evidence — Presumptions.</p> <p>The positive testimony of a guest that on leaving the hotel for the day he paid his bill so as to cash a draft, and that it was understood between him and the hotel officials that he would return in the evening and retain his same rooms, overcomes any presumption of intention to leave the hotel that might arise from the payment of his bill up to the time of his temporary departure.</p> <p>3. Hotels and Guests — Bailees.</p> <p>Where a guest of a hotel leaves the hotel, leaving his baggage which the hotel company stores, the hotel company becomes a bailee of the baggage and is liable for its loss.</p> <p>4. Hotels and Guests — Valuables—Notice.</p> <p>A notice posted in the rooms of a hotel directing guests to leave their valuables at the office does not apply to mineral specimens in a guest’s trunk.</p> <p>5. Same.</p> <p>In an action against a hotel company by a guest for the value of a trunk and its contents, the fact that the trunk contained valuable specimens that should have been left at the office in accordance with posted notice cannot be urged as a reason for reversing the judgment, where the court refused to include the value of the specimens in his judgment, and only rendered judgment for the value of the trunk and the clothing it contained.</p>

<p>1. Appellate Practice — Evidence—Verdict.</p> <p>The verdict of a jury on conflicting evidence will not be interfered with on appeal unless there is such a decided preponderance in appellant’s favor as to convince the court that the verdict ought not to stand.</p> <p>2. Instructions.</p> <p>A cause will not be reversed on account of the instructions if taken as a whole they fairly and legitimately submitted tlie issue to the jury, although they may not be clear and precise in all their aspects and particulars or drafted in the most satisfactory form.</p> <p>3. Wages — Presumption.</p> <p>In an action for wages, at a fixed sum per week, by a' stenographer, it will not be presumed that she was to lose her wages for the time she was necessarily absent on account of sickness, in the absence of an agreement to that effect.</p>

<p>1. Resulting Trusts — Gifts.</p> <p>Ordinarily all that is necessary to establish a prima facie resulting trust is to show that the party seeking to enforce the trust paid the purchase money, and the law presumes that he intended to reap the benefits although title was taken in another’s name. But when title is taken in the name of a wife or child, or some other person for whom the one furnishing the money is under some natural, moral or legal obligation to provide, the presumption is that it was intended as a gift or advancement and not as a trust. In the latter case, one seeking to establish a resulting trust must show not only that he paid the purchase money, but he must also show that he did not intend it as a gift or advancement.</p> <p>2. Resulting Trusts — Pleading.</p> <p>Where a complaint seeking to enforce a resulting trust shows upon its face that the party in whose name title was taken was the daughter of the person furnishing the purchase money and who is seeking to enforce the trust, it is not necessary to plead in the answer that a gift or advancement was intended, as that issue is raised by the complaint.</p> <p>3. Trusts — Enforcement.</p> <p>One seeking to enforce a resulting trust against the heirs of the alleged trustee must recover against all or none.</p> <p>4. Trusts — Burden of Proof.</p> <p>Where it is sought to establish a trust and to contradict the terms of a deed, the proof is required to be of a strong and convincing character, and-when the relationship of the parties is that of father and daughter, much more is the evidence required to be full, complete and conclusive.</p> <p>5. Trusts — Laches.</p> <p>Where a father attempts to enforce a resulting trust against the heirs of his daughter seventeen years after the making of the deed to his daughter and fourteen years after her death, his laches, if not enough to estop him from asserting his claim, was sufficient to conclusively rebut any possible presumption that he intended a.trust for his own benefit.</p> <p>6. Trusts — -Accounting—Rents and Profits — Improvements.</p> <p>In an action to enforce a resulting trust, the complainant who failed to establish the trust cannot complain of the failure of the court to order an accounting when his use and occupation of the premises exceeded in value all the improvements made by him on the premises.</p>

<p>1. Cities and Towns — Violation of Ordinance — Actions. Proceedings for the violation of city or town ordinances are civil actions.</p> <p>2. Practice — Jury Trial — Cities and Towns.</p> <p>On an appeal to the county court from a judgment of a police magistrate imposing a fine for the violation of a city ordinance, where the trial is hy a jury, it is the province of the jury not only to pass upon the question of the guilt or innocence of the defendant, hut also to assess the fine in case he is found guilty, and it is reversible error for the court to submit to the jury only the question of guilt or innocence, and himself to assess the fine.</p>

<p>1. Cities and Towns — Waterworks—Statutory Construction.</p> <p>Subdivision 67 of section 3312, Gen. Stats, as amended in 1893, empowering cities and towns to purchase or erect waterworks, or to authorize the erection of the same by others, was intended to vest and does vest in the authorities of cities and towns, entire discretion as to the use of any and all of the means specified in the statute to supply the city or town with water, and the fact that a city or town has granted to a private party or corporation a franchise to construct waterworks to supply the city or town does not preclude the city or town from afterwards constructing waterworks of its own.</p> <p>2. Cities and Towns — Ordinances—Waterworks.</p> <p>An ordinance of a city which authorizes the “ purchase or construction” of waterworks is not void on account of covering two subjects, nor because it is in the alternative. The one subject and object is to secure to the city the ownership of its own waterworks system. And it is in the nature of an ordinance to take effect upon the happening of a contingent event, which is permissible.</p> <p>3. Cities and Towns — Bonds.</p> <p>A statute which authorizes a city or town to issue bonds for the purpose of erecting waterworks, implies the authority to sell the bonds.</p> <p>4. Cities and Towns — Waterworks—Taxation.</p> <p>The fact that the building of waterworks by a city will increase the indebtedness of the city and impose additional taxation upon the citizens, is not an objection to the sale of- bonds and the building of the waterworks, with which the courts are concerned, but is a matter in the discretion of the municipality.</p>

<p>1. Practice — Depositions—Amendments.</p> <p>It is within the discretion of the court to permit a deposition to be returned to the notary before whom taken for amendment, and to permit its amendment so as to’ show that the person taking and certifying it was a duly qualified and acting notary public.</p> <p>2. Practice — Depositions—Objections—Waiver.</p> <p>Where a deposition was sent up with the papers on appeal from county to district court and filed with the papers in the district court, it is too late to object to the method of taking the deposition after the commencement of the trial in the district court.</p> <p>S. Practice — Depositions—Appeals.</p> <p>Depositions taken and used in the trial of a cause in the county court may be used in the trial of the same cause on appeal to district court.</p> <p>4. Contracts — Damage—Delay.</p> <p>A party to a contract does not waive his right to claim damage for delay, caused by change of place of performance, by failing to object’ to the change.</p>

<p>1. Divorce — Alimony—Appellate Practice.</p> <p>On appeal from an interlocutory judgment awarding alimony pendente lite, the question as to whether or not there was a sufficient showing on which to base the interlocutory order will not be considered, where it appears the case has proceeded to final decree of divorce with a judgment for permanent alimony.</p> <p>2. Same.</p> <p>An interlocutory judgment awarding temporary alimony will not be disturbed on appeal, whether or not it was based on a sufficient showing, where it appears the case has proceeded to final decree of divorce with a judgment for permanent alimony, not appealed from, which provides that the amount of temporary alimony if paid shall be credited on the judgment for permanent alimony, as appellant is totally unharmed by the judgment for temporary alimony.</p>

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

<p>1. Practice — Change of Venue.</p> <p>An application for a change of venue by intervenors in a case is addressed to the discretion of the court, and in the absence of a showing of abuse of discretion the court’s action in denying the application is not error.</p> <p>2. Instructions — Advisory Verdict.</p> <p>Where the verdict of a jury is merely advisory, and the court may or may not follow it, error committed in the instructions is not ground for a reversal.</p> <p>3. Practice — Bindings of Bact and Conclusions of Law.</p> <p>A party should request a statement of the findings of fact and conclusions of law of the trial court if he desires a review of the court’s action in that respect.</p> <p>4. Appellate Practice — Opinion of Trial Court.</p> <p>Where a trial court files a written opinion, which is sent up with the record, and the opinion as a whole is right in the conclusions announced, the fact that it contains some things that do not commend themselves to the judgment of the appellate court is not ground for reversal.</p> <p>5. Fraudulent Conveyance — Preference of Creditors.</p> <p>Where a creditor knew of the failing condition of his debtor and took a secret mortgage to secure his debt which by agreement with the mortgagor he withheld from the record and afterwards the debtor made another mortgage covering his entire assets to secure said creditor with others, the mortgage was fraudulent and void as to said creditor.</p> <p>6. Same — Attorneys’ Fees.</p> <p>Where a mortgage was given to secure certain preferred creditors and included a fee for future services of the attorneys of the mortgagees, who were also the attorneys of the mortgagors, to be rendered in defending anticipated suits to set aside the mortgage, the mortgage so far as it went to secure said attorneys was fraudulent and void as to unsecured creditors.</p> <p>7. Fraudulent Conveyance — Knowledge of Attorney- Chargeable to Client.</p> <p>Where a mortgage was made to secure certain preferred creditors and the attorneys of the creditors were in possession of knowledge which if possessed by the creditors would render the mortgage fraudulent and void, the knowledge of the attorneys is chargeable to the clients and the mortgage is fraudulent and void as against unsecured creditors, although the mortgagees themselves were innocent and had no knowledge of the fraudulent character of the transaction.</p> <p>■ 8. Appellate Practice — Abstract of Record.</p> <p>Questions argued by counsel for appellants will notbe considered unless based on matters shown in the abstract of the record.</p>

<p>1. Contracts — Evidence—Parol to Vary Written Agreements.</p> <p>A written agreement cannot be varied or contradicted by parol testimony of prior or contemporaneous agreements, or subsequent declarations which tend to vary or modify the terms of the instrument but which do not amount to a substituted agreement based on a consideration.</p> <p>2. Same — Burden of Proof.</p> <p>In an action on a written contract the defendant may show by parol testimony that the contract is not his contract because it was dependent on a condition precedent or subsequent, which not occurring the writing never became a contract. But the burden is on a defendant to establish such a defense by a strong preponderance of testimony before he can be relieved from the obligations of his agreement.</p> <p>3. Eraud — Estoppel.</p> <p>Where a party executes an instrument for the purpose of enabling the person to whom it is executed to defraud a third party, he cannot thereafter avoid his contract by proof of the fraudulent purpose for which the instrument was executed, although he may not have reaped any of the benefits of the fraud.</p> <p>4. Sealed Instruments — Consideration—Evidence.</p> <p>The consideration expressed in a sealed instrument is only prima facie evidence against the one who made it. The consideration in such an instrument may be explained by parol evidence.</p> <p>5. Mortgages — Subsequently Acquired Title.</p> <p>Where a mortgagor of real estate is at the time of the mortgage without title, a subsequently acquired title will inure to the benefit of the mortgagee, and is subject to foreclosure under the mortgage.</p> <p>6. Mortgages — Public Lands — Improvements.</p> <p>A mortgage on public land executed by a pre-emptor thereon prior to obtaining a patent, for the purpose of paying for improvements and betterments, is not void under tlie federal statutes as contrary to public policy.</p> <p>7. Contracts — Legal and Illegal.</p> <p>In a suit on a contract where the plaintiff requires no aid from an illegal transaction to establish his case, he may recover notwithstanding the contract sued on may have grown out' of the illegal transaction.</p> <p>8. Mortgage — Public Lands — Improvements.</p> <p>A mortgage on public land executed by a pre-emptor prior to acquiring title thereto to pay for betterments on the land is valid and may be enforced notwithstanding the mortgagor originally entered upon the land under an illegal agreement with the mortgagee to acquire title for the mortgagee’s benefit,, and although the mortgagee in securing the mortgage may have had in contemplation the protection of himself for money advanced in the event the mortgagor should refuse to carry out the illegal agreement to convey..</p>

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

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

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

<p>1. Pleading — Demurrer—Waiver.</p> <p>In an action for damage for negligently burning hay, a complaint that fails to allege that plaintiff is the owner of the hay is insufficient to state a cause of action and the defendant does not waive the objection by answering as the objection may be raised at any time.</p> <p>2. Measure of Damage — Evidence.</p> <p>In an action for damage for negligently burning hay the measure of damage was what the hay was worth in the market less the expense of transportation, or the max-ket value where it stood if it had a max-ket value at that place, and not what it might be worth to some pax-tieular individual.</p> <p>3. Practice — Motion for New Trial — Exception.</p> <p>It is not necessary to except to the action of the court in overruling a motion for a new trial. The motion and ruling thereon are by section 381 of the code made part of the record without exception.</p> <p>4. Appellate Practice — Bill of Exceptions — Waiver.</p> <p>An objection to a bill of exceptions on the ground that it is not in proper form, and was not tendered or filed in conformity with the code, comes too late when made for the first time in the argument on final hearing of the case. Not having been raised at the proper time the objection-is waived.</p>

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

<p>Taxation — Lien—Merchandise—Statutory Construction.</p> <p>By section 2819, General Statutes, taxes on personal property is made a perpetual lien upon the property on which it is levied. By Session Laws, 1885, p. 320, such lien is made to extend to any stock of merchandise held by the person taxed while engaged in merchandising whether such stock is the identical stock taxed or contains articles added thereto after such assessment or levy. Where a stock of goods is transferred after a tax is levied thereon the lien follows the goods and may be enforced against the vendee as to the specific goods received from the vendor against whom the tax was levied, but does not attach to merchandise afterwards added to the stock by the vendee.</p>

<p>Practice — Defense—Burden of Proof.</p> <p>Wliere a lease and bond of a mining claim was signed by two of the four joint owners and one of them as attorney in fact signed the names of the other two, and the lessee sold and assigned the lease and bond, in an action by the lessee against the assignees upon a note given in consideration of the assignment, where the defendants pleaded a failure of consideration because the lease and bond was .not executed by two of the owners nor by any one authorized to execute it for them, the burden was on the defendants to prove that the party assuming to act as attorney in fact for the two owners had no authority to execute the instrument for them.</p>

<p>1. Contracts — Statute of Frauds.</p> <p>An agreement not to engage in a certain business at or near a certain place for a period of three years, is an agreement not to be performed within one year, and under the statute of frauds is void unless in writing. And the fact that the consideration for the agreement was paid would not relieve it from the effects of the statute.</p> <p>2. Same.</p> <p>The violation of a contract void under the statute of frauds after the consideration has been paid by the other party is not such fraud as would authorize a court of equity to disregard the statute and enforce the contract.</p>

<p>1. Practice — Res Judicata.</p> <p>In an action upon a building contract, where the complaint included separate items upon which a separate and independent suit might be maintained, and the complaint was dismissed as to such separate items and judgment entered upon the remaining cause of action, in a subsequent suit upon the items dismissed the former judgment cannot be pleaded as res judicata.</p> <p>2. Same.</p> <p>Where in an action upon a building contract the defendant pleaded nonperformance and bad performance of the contract, and sought to recoup damage for the failure to do the work according to the contract, a judgment in the cause not appealed from was conclusive as to the character of the performance, and in a subsequent suit upon separate items connected with the same building, the character and manner of the performance"of the work was res judicata.</p> <p>S. Appellate Practice — Immaterial Errors.</p> <p>Where substantial justice has been done between the parties a judgment may not be reversed for immaterial errors which do not affect substantial rights.</p>

<p>1. Bills and Notes — Bona Eide Holder — Instructions.</p> <p>In an action, by the indorsee, upon a negotiable promissory note, where the evidence shows that the note was transferred to plaintiff before maturity in the usual course of business as collateral security for an existing debt, and there is no evidence to the contrary, it is the duty of the court either to instruct the jury as to what would constitute a bona fide holder for value, or else to directly instruct that under the evidence plaintiff is a bona fide holder for value and entitled to recover.</p> <p>2. Bills and Notes — Corporations—Authority of Secretary— Ratification.</p> <p>Even though the secretary of a corporation by virtue of his office may not be authorized to indorse and transfer a note of the corporation, the corporation may, by its subsequent conduct, ratify such transfer. The payment by a corporation of the costs and expense of a suit brought by the indorsee upon a note transferred to such indorsee by the secretary of the corporation, was a ratification of the transfer.</p> <p>3. Bills and Notes — Collateral Security — Suit by Indorsee.</p> <p>In an action upon a negotiable note by the indorsee to whom it was transferred before maturity as collateral security for an existing debt, the fact that the indorser paid the costs and expense of the suit is a circumstance to be considered in determining the title to the note, but alone is not enough to impeach the title of the holder, and is not enough to overcome direct testimony of the plaintiff that the note was delivered to him as collateral security for a bona fide existing debt.</p>

<p>1. Depositions — Authentication—Statutory Construction.</p> <p>The statutory requirement that in taking depositions the interrogatories and answers shall be carefully read to the witness before signing does not require the certificate of the officer to state that they were “ carefully ” read to the witness before signing. A certificate that certifies simply that the deposition was read to the witness before signing is sufficient. It will be presumed it was read with that care required by the statute.</p> <p>2. Principal and Agent — Money had and Received.</p> <p>Where a party borrowed money through the local agent of a loan company and, in his application appointed the agent his agent to procure the loan, and the borrower gave an order on the company for the money to a third party, which was accepted, and the company paid part of the money direct to the party holding the order and remitted the balance to the agent to be paid on the order, an action could be maintained by the person holding the order against the agent for the money received from the company as for money had and received for the use of plaintiff without making the company a party.</p> <p>3. Appellate Practice — Findings oe Trial Court.</p> <p>Findings of the trial court on conflicting evidence not manifestly against • the weight of evidence are conclusive on the appellate court.</p>

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

<p>1. Bills and Notes — Promise to Accept — Condition Precedent.</p> <p>A promise, based upon a consideration, to accept a bill or order made before the bill or order is drawn, may be enforced against the party making the promise by one who purchases such bill or order with information and upon the faith of the promise, and the drawee cannot avoid his liability by proving that the promise to accept was based upon a condition precedent if the payment of the order would cause no loss.</p> <p>2. Same — Evidence.</p> <p>In an action upon an order against the drawee, where the drawee had promised to accept the order before it was drawn, it was error to refuse to permit plaintiff to prove that at the time he purchased the order the drawer informed him of tlie drawee’s promise to accept.</p> <p>3. Bills and Notes — Promise to Accept.</p> <p>Where one party who is indebted to another agrees with his creditor to accept orders drawn to the amount of such indebtedness he is bound to pay orders drawn under such agreement to .the amount of such indebtedness in the hands of bona fide purchasers, unless he can show that prior to the purchase of such orders or prior to the acceptance by the drawee of enough orders to exhaust the fund, the fund had heen exhausted.</p> <p>4. Same — Rescission op Agreement.</p> <p>One who being indebted to another promises to accept orders drawn on him to the amount of such indebtedness by his creditor, cannot rescind such agreement after orders have been issued and in the hands of bona fide purchasers, so as to avoid payment of such orders.</p>

<p>1. Appellate Practice — Bills oe Exception.</p> <p>Where a bill of exceptions is prepared and tendered within the time limited, the party’s rights are preserved and he cannot be prejudiced by a failure or neglect of the judge to sign or seal it within the time. And where a bill of exceptions was signed and filed within the time but the seal was omitted, the judge might add his seal after the filing and after the expiration of the time limited.</p> <p>2. Mechanics’ Liens — Statutory Construction.</p> <p>The mechanic’s lien act of 1893 did not apply to contracts or liens which had their inception prior to the time the act took effect For such liens the statement might be filed under the old law although the act of 1893 was in effect at the time of filing.</p> <p>3. Mechanics’ Liens — Mortgages—Priority of Lien.</p> <p>Where two parties entered into a partnership agreement whereby one was to furnish the money to purchase town lots and to erect buildings thereon and to take title to himself, the other to superintend the building, the profits to be equally divided after paying the first party his money with interest, and the second party purchased lots, the grantor executing deeds to the first party and placed them in escrow to be delivered at any time within a year upon payment of the purchase price with interest, and the second party entered into an agreement with the grantor, whereby he obligated himself to erect buildings on the lots of not less than a fixed value, fixing the liquidated damages for a failure, and the buildings were erected during the time the deeds remained in escrow, and on the same day the deeds were taken out of escrow and placed on record the grantee executed a deed of trust to the lots, a mechanic’s lien filed by the contractors who erected the buildings was a prior Jien to the deed of trust.</p> <p>4. Mechanics’ Liens — Statement—Ownership.</p> <p>A mechanic’s lien statement should be filed against the party who owns the land at the time the claim is filed and not the owner at the time the work was commenced, where the ownership is transferred between the time the work is commenced and the time it is concluded.</p>

<p>Opinion Hollowed.</p> <p>This case is reversed upon the opinion in the case of the Chicago Lumber Co. v. Dillon et al., ante, p. 196.</p>

<p>1. Appellate Practice — Bills op Exception — Tender.</p> <p>Where a party tenders his bill of exceptions within the time limited, his rights are protected even though the bill be not actually signed until the expiration of the time. And where the judge is absent and cannot be found at the court house, at his chambers, or at his residence, it is a sufficient tender to deposit the bill of exceptions with the clerk and have the clerk indorse thereon the fact, date and purpose of the deposit.</p> <p>2. Practice — Bills op Exception — Time por Presenting.</p> <p>Where a motion is made for a new trial and passed over to the next term of the court, and final judgment in the cause is reserved until the motion is disposed of, the term of court at which the motion is overruled is the term for presenting a bill of exceptions or for fixing a time for presenting such bill.</p> <p>3. Instructions — Hypothetical.</p> <p>In an action for possession of personal property where defendant claimed that he had purchased the property from plaintiff, and plaintiff denied that defendant had purchased any part of it, an instruction that “it is conceded by plaintiff that if any of the property described in the complaint was purchased by the defendant, he was entitled to retain the possession thereof, and is not accountable therefor in this action,” was erroneous and prejudicial to plaintiff’s case.</p> <p>4. Practice — Instructions—Exceptions.</p> <p>Where the instructions of the court are separately paragraphed and numbered, and immediately following any numbered paragraph was an exception as follows: “To the giving of which instruction the plaintiff then and there excepted,” was sufficient to bring the instruction before the appellate court for consideration, without stating the grounds of the objection.</p> <p>5. Appellate Peactice — Exceptions—Judgments—Jury Teial.</p> <p>Tlie rule that the judgment of the trial court upon the evidence will not be reviewed unless the judgment be excepted to and the exception preserved in the bill of exceptions, does not apply to judgments upon verdicts of juries, but applies only where the trial is to the court upon the evidence.</p>

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

<p>1. Practice — Motions—Statutory Construction.</p> <p>Section 432 of the code, which provides in substance that, if an application for an order made to a judge of the court in which the action or proceeding is pending be'refused, no subsequent application for the same order shall be made to any other judge, except in a higher court, has no application to motions filed and made in court, during the regular course of proceedings, with reference to a suit, such as a motion made to dismiss an appeal from the county to the district court, nor where both applications or motions were heard by the same judge.</p> <p>2. Practice — Successive Motions — Discretion.</p> <p>The right to make successive motions for the same relief is within the discretion and control of the trial court, and that discretion will not be interfered with by an appellate court unless there has been a manifest abuse of it.</p> <p>3. Res Judicata — Motions.</p> <p>The principle of res judicata has no reference to motions. The court may, after overruling a motion, give leave for the renewal of the motion, or for the filiug of a new motion asking a similar order.</p> <p>4. Motions — Leave to File — Presumption.</p> <p>Where the record is silent as to whether or not leave was granted for filing a second motion asking the same relief, and it appears the second motion was heard and acted upon by the court, it will be conclusively presumed that leave was granted.</p> <p>5. Appeal from County to District Court — Extension of Time-Notice.</p> <p>The county court has no authority to extend the time for filing au appeal bond on appeal to the district court unless the opposite party has notice of the application for such extension, and where the time for filing such bond was extended without notice to the opposite party and the bond was filed after the expiration of the statutory time, but within the time as extended, the appeal was properly dismissed by the district court upon motion.</p>

<p>1. Motions — Notice—Appeals prom County to District Court— Extension oe Time.</p> <p>On appeal from the county court to the district court, the county court has no jurisdiction to extend the time for filing an appeal bond except upon notice to the opposite party. An affidavit of appellant that he mailed a letter to appellee’s attorney advising him of the application for an extension does not amount to proof of notice where the contents of the letter were not incorporated in the affidavit; and if the letter contained such notice as would satisfy the requirements of the code, any presumption that it was received by appellee’s attorney was rebutted by his affidavit that he had no notice.</p> <p>2. Same.</p> <p>On appeal from the county court to the district court, although notice be given of an application for the extension of the time for filing an appeal bond, if the bond be not filed within the time as extended and another extension is made without notice, the latter extension is without authority and the appeal must be dismissed.</p>

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

Domestic differences begot this suit for divorce between Lettie A. Mercer and her husband, John. Mrs. Mercer filed her complaint in April, 1896, wherein she set up statutory grounds for the severance of the bonds of matrimony, stated the financial situation of the defendant husband, and prayed for alimony both temporary and permanent. The husband answered denying the alleged grounds, and by way of cross-complaint set up a cause of action for divorce.

<p>1. Contracts — Specific Performance — Alteration.</p> <p>Where a ■written contract for the conveyance of land has been altered in a material part by the grantee without the knowledge or consent of the grantor, the instrument is void, and will not support an action for specific performance.</p> <p>2. Contracts — Specific Performance — Subsequent Purchaser— Notice.</p> <p>Specific performance of a contract to convey land will not be enforced against a subsequent purchaser where the subsequent purchaser had no notice of the claim of the plaintiff at the time of his purchase.</p> <p>3. Practice — Pleading and Proof.</p> <p>An action for specific performance of a contract cannot be maintained wbere the proof shows a different agreement from the one alleged in the complaint.</p>

<p>1. Accord and Satisfaction — Pleading and Proof.</p> <p>Where a party attempts to establish accord and satisfaction by payment of a smaller sum in settlement of a larger debt, he must allege and prove that the payment was received and accepted by the creditor in full satisfaction of the debt.</p> <p>2. Judgments — Assignment of Interest — Right of Action.</p> <p>Where a judgment creditor assigned an interest in a judgment to be paid pro rata as the judgment was collected, the assignee to have no right of control or interference in the management or collection of the judgment, and the judgment creditor settled with the judgment debtor, taking in payment property which he transferred, and placed it out of his power to comply with his contract of assignment, the assignee of the interest in the judgment had a right of action at once against the judgment creditor for the amount of his interest in money, and was not required to look to the property received in settlement for his interest.</p>

<p>1. Contracts — County Physician — Personal Services.</p> <p>In an action by a physician upon a contract made with a county whereby he for a consideration agreed to furnish medicines and surgical appliances and attend, take care of and give all proper medical attention to all poor persons who might be a charge upon the county, the fact that he was absent from the county part of the time on account of sickness of himself and wife was no defense to the action, where he employed another competent physician to attend to the county patients during his absence. The employment was not one which called for personal services wherein he could not substitute another for himself. All that it required was proper medical attention, medicines, etc.</p> <p>2. Same.</p> <p>Where a physician contracted with a county for a consideration to furnish all proper medicines and medical attention to all poor persons who might be a charge upon the county, it would he unreasonable to hold that he could not substitute another reputable physician in his stead during sickness or temporary absence, even if the contract was one that- called for personal service.</p> <p>3. Same.</p> <p>Where a county physician during his temporary absence employed another physician in his stead and a member of the board of county commissioners on several occasions, during the time, called upon the substituted physician to attend the county pool- which he did, it was a recognition by the county of the employment of the substitute.</p> <p>4. Contracts — County Physician — Evidence.</p> <p>In an action by a county physician against a county upon a contract of employment for a certain period, evidence that during part of the time the county employed another physician was properly excluded, where the only defense set up in the answer was that plaintiff had failed to comply with the terms of his contract. If plaintiff had fulfilled the obligations of his contract the fact that the county employed another physician was no defense to his action. .</p> <p>5. Same.</p> <p>In an action by a county physician for compensation for his services, the record of the county poor kept in the clerk’s office and made up after the expiration of the quarter for services during which the action was brought was properly excluded.</p> <p>6. Practice — Recovery oe Less than Claimed.</p> <p>A defendant cannot complain that a plaintiff recovered less than he claimed and less than he was entitled to recover.</p>

<p>1. Practice — New Trial — Newly Discovered Evidence.</p> <p>An application for a new trial on the ground of newly discovered evidence must show what diligence the party used in preparing for the first, how the new evidence was discovered, what it consists of and what facts it will establish,, why it was not discovered before the trial, and must make it clear that the failure to produce the evidence was not through his own want of diligence.</p> <p>2. Same — Corporations.</p> <p>An application for a new trial on the ground of newly discovered evidence, made by a corporation and based on the affidavit of its secretary, is insufficient where the affidavit fails to show how the facts alleged came to be in the knowledge of the affiant and fails to show that no other officer or agent of the corporation knew of the evidence in time to have produced it at the trial.</p> <p>3. Practice — New Trial — Newly Discovered Evidence.</p> <p>An application for a new trial on the ground of newly discovered evidence which shows that the whereabouts of the witness was discovered after the trial began, but four days before it was concluded, and which fails to show any effort to procure the attendance of the witness after his discovery or that his attendance could not have been procured in time, fails to show proper diligence.</p>

<p>Appellate Practice — Abstract op Record.</p> <p>Appeal dismissed for failure to file a proper abstract of tbe record.</p>

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

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

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

<p>Principal and Agent — Authority op Agent — Evidence.</p> <p>In an action against a corporation upon a time-check, it is incumbent on the plaintiff to show that the party who signed the instrument was the agent of defendant and authorized to execute such instruments, but evidence that the party was connected with the company in some capacity and had represented it in suits and other matters, in connection with the agent’s declaration that he was the company’s manager, was sufficient proof of agency to impose upon defendant the burden of disproving it.</p>

<p>1. Practice — Pleading—Estates of Decedents.</p> <p>A bill against an administrator asking that plaintiff be declared the sole heir of the deceased, which fails to show that an estate of personal property to which plaintiff is entitled has come into and remains in the possession of. the administrator, that the estate is in condition for distribution and that demand has been made, fails to state any cause of action against the administrator.</p> <p>2. Estates oe Decedents — Pasties.</p> <p>A bill against an administrator asking that plaintiff be declared the sole heir to the estate is fatally defective unless all parties who might be entitled to share in the estate are made parties.</p> <p>3. Judgments — Divorce—Collateral Attack.</p> <p>A judgment of divorce which does not affect any property rights may not be attacked in a collateral suit against the administrator of the party in whose favor the divorce was granted.</p> <p>4. Summons — Waives oe Deeeots.</p> <p>Where a defendant accepted service of summons and waived the time to appear, answer or demur, it was a waiver of a defect in the summons in failing to state within what time defendant was required to appear, and a judgment entered upon such summons without further appearance by defendant is not invalid on account of such defective summons.</p>

<p>1. Railroads — Killing Stock — Practice—Question for Jury.</p> <p>In an action against a railroad company for killing stock within or contiguous to the corporate limits of a city, where the defendant introduced in evidence an ordinance of the city prohibiting stock from running at large, and a map and other evidence tending to show that the animal was killed within the city limits, and the plaintiff introduced in evidence an ordinance designating the boundaries of the different wards and other evidence tending to show that the point where the animal was killed was without the city limits, it was a question for the jury to determine whether or not the animal was killed within the city limits, and a failure to submit that question to the jury was error.</p> <p>2. Railroads — Negligence—Killing Stock.</p> <p>Where an animal on a railroad track is in such position that it could not be seen by the engineer until the train was too close to the animal to stop before striking it, and the evidence shows that it would be more dangerous to the passengers on the train to strike the animal at a reduced speed, it was not want of ordinary care for the engineer to fail to make an effort to stop or to fail to reduce the speed of the train.</p>

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

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

<p>1. Bills and Notes — Indorsement—Guaranty.</p> <p>A contract indorsed upon a negotiable promissory note whereby the payee guaranteed the payment of interest coupons at maturity, the principal note within two years after maturity and guaranteed a smaller rate of interest after maturity than the face of the note called for, and reserved to the payee the right to purchase back the note at any time by paying its face value was not a guaranty of the payment of the note according to its terms, and was not of itself such a contract as would amount to an indorsement of the note and pass the legal title free from equities and defenses against the payee.</p> <p>2. Same.</p> <p>Where a negotiable promissory note was transferred before maturity, and was indorsed in blank by the payee, and at another place on the back of the note and entirely separate from the blank indorsement was written a contract of guaranty signed by the payee guaranteeing the payment of interest coupons at maturity, the principal within two years after maturity, and reserving the right to purchase back the note at any time, it is held that the contract of guaranty was only a limitation of the indorser’s liability and did not affect the legal title of the indorsee which he took by the transfer and blank indorsement, and the note passed to the indorsee free from equities and defenses that might be pleaded against the payee.</p> <p>3. Bills and Notes — Negotiability—Deeds of Trust.</p> <p>Where a promissory note negotiable upon its face is secured by a deed of trust it is held that a stipulation in the deed of trust obligating the grantor to pay taxes and to keep the buildings on the premises insured, and providing that upon failure the trustee or holder of the note might pay the taxes or insure the buildings, and the amount thus paid should be an additional indebtedness to be paid out of the proceeds of the sale of the land if sold under the deed of trust, and making the failure to pay taxes or to insure the building a condition upon which the holder of the note might declare the note due and proceed to foreclose, did not render the note uncertain as to amount or time of payment so as to make it nonnegotiable.</p> <p>4. Bills and Notes — Principal and Agent — Authority to Collect.</p> <p>A party executed his note and deed of trust to an investment company who transferred the note before maturity of which transfer the maker had no knowledge, and prior to the maturity of each interest coupon it was sent by the holder to the company for collection and the company collected all the interest coupons, and at maturity collected the principal, but the company became insolvent and failed to account to the holder of the note for the principal. In an action by the maker of the note against the holder and the trustee to restrain the foreclosure of the deed of trust, and to cancel the note, the officers of the company testified that they had no recollection of any specific agreement with reference to the collection of this specific note, but that it was the universal custom of the company to collect all notes sold by it, and that all notes were sold with a general understanding that the company would take care of the loan and make all collections without charge to the purchaser. Held that this evidence was sufficient to establish a prima facie case of agency on the part of the company to collect the note, and where defendant, with full knowledge that the question of the com- . pany’s agency was made an issue by the pleadings and of plaintiff’s evidence in support thereof, remains silent and fails to contradict the evidence, his silence will be taken as a corroboration.</p> <p>5. Same — Collection of Part of Note.</p> <p>Authority to collect a note includes authority to collect part of it. Where an agent authorized to collect a note, collects pai't of the principal after maturity the collection will bind the holder.</p> <p>(i. Same — Maturity of Note.</p> <p>Where a note was made payable in five years but payable at the option of the maker after three years, a payment of part of the principal made after the expiration of three years but before the expiration of five years, to an agent of the holder authorized to collect, the note was binding on the holder.</p> <p>7. Principal and Mjent — Admissions oe Agent.</p> <p>To show that the holder of a note had looked to an investment company for its collection a letter, by one who was shown to have had entire control of the holder’s business, so far at least as the note was concerned, to the maker of the note, from which an inference might be drawn that the writer had looked to the company for collection prior to its failure was admissible in evidence on behalf of the maker of the note, where the issue to be established was the authority of the investment company to collect the note.</p>

<p> Appeal from the County Court of Cheyenne 'County. </p>

<p>1. Cities and Towns — Lighting Streets — Negligence.</p> <p>Where the charter of a city gives it power to provide for lighting its streets, but does not require it to exercise this power, there is no general duty devolved upon the city to light the streets that would make its failure to do so actionable negligence.</p> <p>2. Negligence — Cities and Towns — Sidewalks.</p> <p>A city is not liable for personal injuries caused by a pedestrian stumbling and falling over a railing that the owner of an adjoining lot had placed along the edge of a sidewalk without the space of the constructed sidewalk but within the space of the sidewalk area between the sidewalk and street, where the sidewalk itself was unobstructed and was of sufficient width to accommodate the travelers in the locality in which it was constructed.</p> <p>3. Same.</p> <p>Where a city charter does not require a city to maintain sidewalks of any specified width for the use of pedestrians, the width of a sidewalk designated by a city is a matter of discretion with the city, and this discretion cannot be reviewed judicially or passed upon by a jury, nor does it constitute actionable negligence unless it be shown that the discretion has been abused, and that the width of the sidewalk as constructed is clearly insufficient for the purpose of travel.</p> <p>4 Same.</p> <p>It is the duty of a city or town to see that all parts of its streets open for travel, including sidewalks as well as carriage ways, are kept in repair, but that duty is performed when the way designated and evidently intended for travel is without obstruction or such structural defects as would endanger the safety of travelers, in the exercise by themselves of ordinary care.</p> <p>5. Pleading — Demurrer—Joint Dependants.</p> <p>Where a complaint alleging a joint liability against two defendants is defective as to one, it must on general demurrer fail as to both.</p>

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

<p>Contracts — Commissions—Principal and Agent.</p> <p>Where a note and deed of trust was given to an investment company and were transferred to a third party and the owner of the premises mortgaged, applied to the local agent of the investment company to secure an extension of time for the payment of the note, and the investment company having become insolvent and gone into the hands of a receiver, the local agent secured and presented to the owner of the premises a contract of extension executed by another investment company purporting to be the agent of the receiver of the old company, to be delivered to the applicant upon the execution of coupon notes for interest, made payable to the investment company purporting to make the extension, and there was nothing to show that the company had any authority to act for the holder of the note in making the extension, upon refusal of the applicant to sign the coupon notes, the local agent was not entitled to recover his commissions since he had failed to procure an extension from the holder of the note or any one authorized to act for him.</p>

The history and details of this case are of unusual and extreme importance in determining -the controversy. Some of the features which are of minor importance will be omitted, and only those things stated which are pivotal and fundamental in their character. The Oro Mining & Milling Company was a Colorado corporation owning real estate and mining property in Summit county.

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

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

<p>1. Attachment — Intervention—Fraudulent Conveyance — Burden of Proof.</p> <p>In. an attachment suit where a third party intervenes and claims the property, the burden is on the intervenor in the first place to prove ownership, but where there is evidence of a transfer of the property to the intervenor by the attachment defendant, and the plaintiff in attachment seeks to avoid such transfer by an affirmative defense of a fraudulent conveyance, the burden is on the attachment plaintiff to prove the facts relied on to constitute the fraud, and, in the absence of any evidence tending to prove such affirmative defense, a verdict should be directed for intervenor.</p> <p>2. Practice — Directing Verdict — Withdrawing Case from Jury.</p> <p>In an action between an intervenor and an attachment creditor, where the creditor failed to make any proof of facts relied upon to establish his affirmative allegations of a fraudulent conveyance, the fact that the court upon motion of the intervenor withdrew the case from the jury and entered judgment for intervenor instead of directing the jury to return a verdict was immaterial since the result was the same.</p> <p>3. Fraudulent Conveyance — Consideration—Debt of Husband to Wife.</p> <p>Where a husband conveys property to his wife in consideration of a debt owed by him to his wife, the conveyance is not a voluntary conveyance, and where there was no evidence tending to show that it was made with intent to defraud, it was not error for the court to refuse to submit the question to the jury.</p> <p>4. Fraudulent Conveyance — Personal Property — Possession.</p> <p>Where a husband conveyed to his wife for a valuable consideration a farm and at same time transferred to her certain cattle located on the farm, she was not required to remove the cattle; the record of the deed was public notice that she owned the farm, and the cattle being on the farm were in her possession. There was not such failure to change possession as would make the transfer constructively fraudulent. And evidence that the husband afterwards sold some cattle from the farm without showing that they were a part of the cattle transferred to the wife is insufficient to prove a failure to change possession.</p> <p>5. Fraudulent Conveyance — Admissions of Yendob — Evidence.</p> <p>Admissions of a vendor are inadmissible against the vendee to prove a fraudulent conveyance unless the vendee had knowledge of the admissions.</p>

A statement of the origin of this controversy, and a copy of the documents executed -by the parties in interest will greatly facilitate the decision, and make it easy of apprehension. In the early part of 1893 the appellee Rice with one West-lake and Sidney H. Percy entered into negotiations looking to the establishment of a bicycle business in Denver for the handling of the Sunol bicycles manufactured by the MclntoshHuntington Company of Cleveland, Ohio.

<p>1. Instructions — Omissions cored in Subsequent Instructions.</p> <p>In an action for debt where there are two theories of defense the fact that an instruction on one theory entirely omitted mention of the second is not reversible error where a subsequent instruction fully presented to the jury the second theory.</p> <p>2. Practice — Misconduct of Counsel — Objections.</p> <p>Error based on the misconduct of counsel in argument to jury will not be considered on appeal, unless such misconduct was at the time objected to and the court refused to restrain or correct counsel.</p> <p>3. Appellate Practice — Harmless Error.</p> <p>The-appellate court is bound to disregard all errors which do not affect the substantial rights of the parties.</p>

Henkel & Company appealed from a judgment entered on the trial of an issue formed by the answer of the Bi-Metallic Bank as garnishee and a traverse of it by the appellants. The proceedings are entirely irregular but a statement of the steps taken is requisite to an understanding of the situation. Henkel & Company sued Mcllroy on the 30th of March, 1896.

<p> Appeal from the County Gour t of Arapahoe County. </p>

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

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

<p>1. Practice — Immaterial Error — Dismissal.</p> <p>In an equitable action and application for an injunction where the case was dismissed for want of prosecution and also for want of equity in the complaint, and the record shows that the court’s action in dismissing the case for want of equity was right, it is immaterial whether or not the judgment of dismissal can be justified on the ground of want of prosecution. Since the complaint alleged no cause for relief there was no issue for trial and the cause was properly dismissed.</p> <p>2. Injunction — Insufficiency of Complaint.</p> <p>A complaint and application for injunction to restrain the enforcement of an execution pending a suit for trespass by plaintiff against the execution creditor in order that the judgment may be made a set-off against the execution on the ground that the execution creditor is insolvent, that shows upon its face that no judgment can be recovered in the suit for trespass is fatally insufficient to state a cause for injunction.</p>

<p>1. Injunction — Suit on Bond — Parties.</p> <p>Where an injunction to restrain a county treasurer from the collection of taxes was dissolved, in an action by the treasurer upon the injunction bond an answer that alleged that the county and not the treasurer was the proper party in interest and attempted to set up an affirmative defense against the county was bad.</p> <p>2. Same.</p> <p>Where an injunction to restrain a county treasurer from collecting taxes was dissolved, in an action by the treasurer upon the injunction bond the fact that evidence showed that the expenses incurred in resisting the injunction were paid by the county did not affect the character or amount of defendants’ liability. They obligated themselves in the bond to pay to the treasurer all costs and damages, and the fact that the county and not the treasurer paid the expenses was a question that did not concern them.</p>

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

<p>Injunction — Suit upon Bond — Parties.</p> <p>Where an injunction against a county treasurer to restrain the collection of taxes was dissolved, a right of action upon the injunction bond was a personal right of the treasurer, and he might maintain a personal action upon the bond after his term of office had expired. He was the proper party to maintain such action, and the fact that the county may have paid the expenses of resisting the injunction and would be entitled to receive the amount of damages recovered when collected, was immaterial to the obligors in the bond.</p>

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

<p>1. Practice — Motion for Cost Bond — Default.</p> <p>Under section 168, civil code, providing that if no answer, demurrer or motion has been filed within the time specified in the summons, or such further time as may have been granted, the clerk or judge shall enter the default of defendant, a motion by defendant to require plaintiff to give a cost bond filed within the time was such motion as would preserve defendant’s rights and prevent plaintiff from taking a default.</p> <p>2. Practice — Order fixing Time to answer.</p> <p>In an action where defendant liad filed motion for cost bond and plaintiff bad filed motion for a default, upon disposition of these motions by granting the first and denying the latter, it was proper practice for the court to enter an order fixing the time for defendant to file an answer without requiring a formal application to file such answer from defendant with notice to plaintiff.</p>

<p>1. Practice — Pleading—Time foe filing Complaint.</p> <p>The provision in section 32, civil code, that if the complaint be not filed within ten days after the summons is issued, the action may be dismissed without notice, is not mandatory, but the dismissal is a matter within the discretion of the court and should not be arbitrarily exercised.</p> <p>2. Same — Waiver.</p> <p>Where a complaint was filed more than ten days after the issuance of summons and the defendant appeared and filed a motion to strike a part of the complaint before interposing a motion to dismiss on the ground that the complaint was not filed in time, he is held to have waived objection to the filing of the complaint.</p> <p>3. Replevin — Ownership—Pleading.</p> <p>A complaint that alleged that plaintiff by virtue of certain chattel mortgages was the owner of the property sued for in replevin sufficiently alleged a special ownership to sustain the complaint as against a general demurrer.</p>

<p> Appeal from the District Ooy,rt of Arapahoe Qounty. </p>

Fifty-thbee thousand six hundred brick were furnished by the Merchant Brick and Building Company and delivered at lots 7, 8 and 9, block 23, Wyman’s Addition to the city of Denver, being property situated on Race street between Colfax and Sixteenth avenue. The value of the brick at the price at which the company agreed to sell them was 1225.80. The brick was delivered somewhere between the 1st day of April and the 13th day of May, 1895.

<p>1. Practice — Evidence.</p> <p>Where objection is made to a question asked a witness, and it is impossible to say from the question whether the answer will be material or relevant to the issues, it is the duty of the party seeking to produce the testimony to state what he proposes to prove by the witness, and, if necessary, to connect the evidence proposed with other proof, from which its relevancy or materiality will appear, and in the absence of such statement or offer it is not error to reject the evidence.</p> <p>2. Evidence — Showing of Materiality.</p> <p>On the issue raised by the traverse of an affidavit for attachment on the ground that defendants had fraudulently disposed of their property, and were about to dispose of their property for the purpose of defrauding creditors, it was not error to sustain objections to questions to witnesses as to whether defendants had made sales for less than cost from a stock of goods owned by them prior to their purchase from plaintiff, and as to whether one of defendants had expressed a desire to sell such stock for cash, in the absence of a further showing of the materiality of the evidence or offer to connect it with other proof that was material.</p> <p>3. Same.</p> <p>On an issue as to whether a debt was fraudulently contracted, it was not error to sustain an objection to a question to a witness as to the value placed by the debtor on a stock of goods owned by him to a commercial agency, in the absence of a further showing or offer to connect with proof that was material.</p> <p>4. Evidence — Employer and Employee.</p> <p>An objection to a question that called for a full disclosure of the instructions given witness by his employers concerning the conduct of their business was properly sustained.</p>

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

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

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

<p> Petition in Mandamus. </p>

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

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

<p>1. Practice — Discretion of Trial Court — Default.</p> <p>In. an action against the state board of agriculture where a stipulation was made between plaintiff’s counsel and defendant’s secretary, whereby the time for filing an answer was extended, as understood by defendant, till its executive committee should meet, about the last of the month, but as understood by plaintiff till the 30th day of the month, and on the 31st and before the committee had met plaintiff took default and judgment against defendant, defendant’s mistake was excusable and upon a showing to the trial court it was an abuse of discretion to refuse to set aside the default and permit defendant to answer.</p> <p>2. Default — Excusable Neglect — Affidavit of Merit.</p> <p>On application to set aside a default for excusable neglect it is a better practice to present an affidavit of merit, but there is no established rule in this jurisdiction making such affidavit necessary.</p>

<p>1. Husband and Wife — Sale of Wife’s Property — Estoppel.</p> <p>A wife bought a team of horses and wagon and paid for them out of her own money. She permitted her husband to use them. The husband, with the wife’s consent, traded one of the horses twice and the wagon once, at two of which trades the wife was present and herself paid the boot; at the other, she had seen the horse and authorized her husband to make the trade. The property was assessed for taxes in her name, and the team was spoken of amongst the neighbors as hers. The husband sold the team and wagon, collected the purchase money and absconded. The purchasers hadno knowledge of the wife’s ownership, and the husband represented to them that he was the owner. Held that the facts did not establish a holding out of the husband as the owner of the property so as to estop the wife from denying his authority to sell. And, in an action against the purchasers, she was entitled to recover the property, or its value.</p> <p>2. Same.</p> <p>In an action by a wife against the purchasers of her property from her husband, the utterances of the husband, whereby he claimed to be the owner, cannot be used to impeach the wife’s title, unless she had knowledge of such utterances.</p> <p>3. Same.</p> <p>The fact that a husband has charge and control of his wife’s property raises no presumption of his ownership, nor that he has authority to sell it.</p>

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

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

<p>1. Practice — Joint Dependants — Dismissal.</p> <p>Where a verdict was returned against two defendants as joint tort feasors, and after verdict by agreement of parties tbe case was dismissed as to one and judgment entered on the verdict against the other, this fact will not justify the reversal of the judgment.</p> <p>2. Practice — Absence op Judge during Argument.</p> <p>It is the duty of the trial judge to remain in the court room during the progress of a trial, hut the mere fact of the judge’s absence during the argument is not sufficient to reverse a judgment unless there is a showing of harm or prejudice to the complaining party.</p>

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

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

<p>Principal and Agent — Insurance Companies — Evidence.</p> <p>Where an insurance company filed with the superintendent of insurance a statement designating a general agent and certifying that he had power to appoint and remove local and special agents, and the general agent filed a certified list of agents appointed by him, in an action by one of the agents appointed by the general agent against the company for compensation for services, the officers of the company will not be permitted to contradict the record certificates by testifying that subagents did not represent the company but were employed by the general agent on his own account. The general agent had full power to employ the subagent and bind the company for his compensation, and the company was liable to the sub-agent notwithstanding the contract of employment appeared as if made with the general agent personally.</p>

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

<p>1. Probate Proceedings — Change op Venue — Presumption.</p> <p>Under section 509, Gen. Stats., the county court is authorized for certain causes to change the venue of probate proceedings to the district court of the county, and where the venue in such proceedings is changed to the district court, in the absence of any showing to the contrary, it will be presumed that the power was rightfully exercised.</p> <p>2. Estates op Decedents— Ancillary Administration — Compensation op Administrator.</p> <p>Where an administrator of an estate took out letters of ancillary administration in another state, where part of the estate was situated, he was entitled to the allowance made by the court having control of the ancillary administration in addition to his allowance as domiciliary administrator, and where he turned over to himself, as domiciliary administrator, all the proceeds of the estate from the ancillary administration, and reported the same to the court without deducting therefrom the allowance to him as ancillary administrator, the Colorado court could properly allow him the amount allowed him as ancillary administrator in addition to the maximum allowance fixed by the Colorado statutes.</p> <p>3. Appellate Practice — Findings—Probate Proceedings.</p> <p>The finding of the lower court as to the value of personal property coming into the hands of an administrator as a basis for his compensation is binding on the appellate court unless manifestly against the weight of the evidence.</p> <p>4. Estates op Decedents — Allowance to Administrator — -Attorney’s Fees.</p> <p>An allowance to an administrator of attorney’s fees for counsel employed by him, where there were objections filed to his report, will not be disturbed by the appellate court unless there was an abuse of discretion by the lower court in making the allowance.</p> <p>5. Same — Administrator’s Service as Attorney.</p> <p>Under the Colorado statutes, where an administrator himself is an attorney at law, he cannot be allowed compensation for his professional services to the estate as an attorney.</p>

This action for personal injuries has had somewhat of a peculiar history. As may be gathered from the abstract, issue was taken on the original complaint, the case was partially submitted to a jury and on a motion for a nonsuit plaintiff was given leave to withdraw a juror, making a mistrial, and then took leave to amend his complaint. The complaint was several times amended and demurred to, and several motions filed to strike out sundry sections of the pleading.

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