Volume 17 — Colorado Reports

Original Proceeding for Injunctive Relief. This case is presented upon an agreed statement of facts. The plaintiff company had in its possession and was operating along the line of its road, a number of Pullman sleeping cars, which under the control of a connecting line frequently passed into the adjoining territory of Utah. These cars were not reported for taxation by the proper official with the other rolling stock.

Motion by defendants in error to strike from tbe files tbe “ so called bill of exceptions,” also, the argument of counsel for plaintiffs in error, and other matters.

<p> JSrror to County Court of Arapahoe County. </p>

In January, 1888, a money judgment was rendered by the county court of Lake county in favor of plaintiff in error, Jeremiah Irwin, and against George E. and John King. The Kings undertook to perfect an appeal to the district court. In pursuance of statute the county court entered an order fixing the time within which the appeal bond should be filed, and directing the clerk to approve the same.

Complaint by appellants for specific performance. General demurrer thereto by appellee sustained. Judgment dismissing the suit and for costs in favor of appellee. Facts sufficiently stated in the opinion.

This was a prosecution for the violation of a municipal ordinance. The judgment of the county court was in favor of the defendant. Held: and all the members of the council were present at the meeting. “ 3d. The records do not show that the members of the council were notified as required by statute, nor is any expression found in said records, stating or implying that the call was made in compliance with the statute. “ 4th.

Original Application for Habeas Corpus. THE cause was heard and determined upon the' petition, amended .by stipulation, and the demurrer thereto by the attorney general. For constitutional provisions considered in the opinion, see Const. Colo., art. 2, secs. 8, 23 and 25; art. 6, see. 28, also Const. U. S., art. 14, sec. 1.

<p>1. Creation oe New Counties. — Except as forbidden by some express or implied constitutional inhibition, the legislature may upon creating a new county provide such regulations touching the liabilities and assets of the county from which it is carved as legislative wisdom shall dictate.</p> <p>2. Pro Rata Apportionment of Indebtedness. — A statute directing the pro rata apportionment of the indebtedness of the old county in accordance with the ratio of the taxable property in the new county to that in the old is in accord with a constitutional mandate.</p> <p>3. Power op Court op Equity to correct Mistakes of Pact. — A court of equity undoubtedly possesses the power to correct mutual material mistakes of fact in the settlement of accounts where the law furnishes no adequate remedy.</p> <p>4. When Courts of Equity decline to interfere. — Where parties, there being no bad faith on either side, knowingly predicate a settlement upon uncertain or contingent matters or circumstances, and are mistaken in one or more of the assumed facts or circum- ' stances, courts of equity decline to interfere.</p> <p>5. Taxation of Personal Property. — In this state all personal property, not exempt from taxation, is to be assessed in the county where it is found on the first day of May of the current year.</p> <p>6. Apportioning Indebtedness between Counties — Mistake.— When two hoards of county commissioners acting conjointly, undertake to determine the exact indebtedness to be apportioned between their respective counties, and in good faith believe they have arrived at the correct amount, but by mutual mistake have reached a grossly excessive figure, and the county profiting by the mistake refuses to correct the same, equity may interfere on request of the county injured.</p> <p>7. When Mistakes as to Legal Rights may be relieved. — Sometimes mistakes with reference to the antecedent private legal rights of one party to a transaction, (the legal scope and operation of the specific transactionbeing understood by both parties,) are regarded in equity as analogous to mistakes of fact and accordingly relieved against.</p> <p>8. Equitable Jurisdiction in Adjustment of Accounts. — The setting aside of a settlement and readjustment of accounts are matters peculiarly within the province of equity jurisdiction.</p>

jError to District Court of Arapahoe County. In this action judgment was rendered in the county court in favor of Simmonds, plaintiff, against Heil and Smith, defendants. Thereupon the cause was taken by appeal to the district court. Upon the docketing of the cause in the district court Simmonds applied for and obtained a dismissal of the appeal on the ground that notice of the appeal had not been served upon him as required by law.

<p>1. Personal Judgments against Non-residents. — In the absence of a voluntary appearance courts can obtain no jurisdiction to enter personal judgments for money against non-resident defendants having no propérty in the state.</p> <p>2. Action to' recover Balance after Decree of Foreclosure.— By statute, a separate action at law to recover the balance unpaid upon a mortgage debt after sale of the mortgaged property under a foreclosure decree cannot be maintained in the state of New York, without prior consent of the court of chancery in which the foreclosure takes place.</p> <p>3. New York Bulb not applicable in Colorado. — But prior permission of the New York court of chancery, where a foreclosure has taken place, is not a necessary condition precedent to the maintenance of an action in Colorado against a resident of this state for the unpaid balance of "the mortgage debt.</p>

<p>1. Motion for New Trial. — If the m'otion'for a new trial be not filed within five days after verdict, or in any event before adjournment of the term, it cannot be heard, unless prior to adjournment an extension of time has been obtained.</p> <p>2. Striking the Motion from the Files, when proper. — If such a motion be made at a subsequent term no extension of time having been granted, an order striking the same from the files is proper practice.</p> <p>3. Relief from Judgment within Six Months. — Section 75 of the Civil Code authorizes the court under certain specified circumstances, at any time within six months after adjournment of the term, to relieve a party from a judgment, order or proceeding taken against him through mistake, inadvertence, surprise or excusable neglect.</p> <p>4. Showing required why Application not made during Term.— But before relief can’ be granted under this statute, after the lapse of the term at which the proceeding complained of took place, some cause satisfactory to the court or judge must be shown why the party aggrieved did' not apply for the relief sought during the term.</p>

This was an action for the specific recovery of personal property consisting of .certain horses, mules, sets of harness, •and log wagons.. Bailey and Allen were plaintiffs below. They claimed to be the owners and entitled to the exclusive possession of the property by purchase or assignment front one Alexander Kemp.

This was au action for divorce commenced in the county court by Nahum P. Seeley, plaintiff, against Amy A. Seeley, defendant. Summons was issued on February 15, 1888, and was followed by the usual steps for obtaining service by publication. The last publication was on March 21,1888. Default was entered on April 20th, and final decree was rendered on May 9, 1888.

Arapahoe County. This was an action by T. Morris Perot, plaintiff below, against Sarah P. Cooper as administratrix of Isaac Cooper, deceased. The complaint contained two causes of action: The first was founded upon three certain promissory notes executed on September 30, 1882, by Isaac Cooper for the aggregate sum of 120,000 and payable to the order of plaintiff six, nine and twelve months respectively after date, with interest at six per centum per annum after maturity.

This was an action by Isaac L. Killie, plaintiff below, to recover from Cason Howell, defendant below, possession of certain land. The cause which under our former practice would have been denominated an action of ejectment, was tried upon an agreed statement of facts, the substance of which sufficiently appears in the opinion. The finding and judgment of the district court was in favor of the plaintiff. The defendant brings this appeal.

JSrror to County Court of Lake Comity. This was an action brought by Stowell in the county court of Lake’county for the foreclosure of a mortgage of real property situate in Eagle county.

This action was brought by Mary Ryan, plaintiff below, to recover damages for the death of her husband Patrick Ryan. In her complaint she alleges that on September 17, 1889, her husband was run over and killed by an engine and tender of the defendant The Denver & Rio Grande Railroad Company, and that his death was so occasioned by the negligence of the defendant in operating its railway train at the-intersection of Larimer and Sixth streets in the city^- of Denver.

<p>1. Performance op Annual Labor on Mine. — Labor performed by tbe owner of a mine in constructing a wagon road thereto for tbe purpose of better developing and operating the same may be treated as a compliance with the law relating to annual assessment work.</p> <p>2. Res Judicata — Judgment of Reversal. — Where upon the retrial after reversal the evidence on a given question differs materially from that offered at the former trial, the former judgment of reversal is not res judicata of such question.</p> <p>3. Conflict of Evidence in Cases appealed. — When there is positive and irreconcilable conflict in the testimony, the supreme court wifi not reconsider the credibility of witnesses or re-determine where the preponderance of evidence may be.</p> <p>4. Forfeiture and Relocation of Mining Claim. — Upon the issue of forfeiture of a mining location, by non-performance of assessment work, the conduct and interest of defendants who claim the advantage of a relocation through such forfeiture may be considered in weighing their testimony concerning the forfeiture.</p> <p>5. Supplying Defects'in Instructions. — When instructions given on behalf of plaintiff are imperfect because of omissions to properly explain language employed, but that portion of the charge given at request of defendant supplies the deficiencies and the charge as a whole accurately states the law, the challenge thereto will be overruled.</p>

In this case judgment was rendered in the district court in favor of Hugh Butler, plaintiff, against George R. Gwynn and Elizabeth Gwynn, his wife. The defendant Elizabeth brings this appeal.

Original Application for Writ of Certiorari. In this proceeding the petition of Rockwell and Hurd shows in substance that in December, 1887, petitioners obtained a judgment in the district court of Lake county against Butler and Wright; that said judgment was brought to this court by appeal; that in December, 1889, said judgment was in all things affirmed by this court; and 'that a proper mandate from the supreme court showing such affirmance was duly issued and filed in the…

.. 'Indictment for murder and manslaughter. In November* 1890, the defendant Kelly was convicted of murder of ■ the second degree for the killing of one James Phillips, and was thereupon sentenced to confinement in the penitentiary for. a.term of twenty-six years. He now seeks a reversal of ,the judgment by writ of error.

<p>1. Costs in Condemnation"Proceedings. — Under the constitution, respondent, whose property is taken against his will through condemnation proceedings, is entitled to recover his court costs reasonably incurred in such proceedings. The common law rule forbidding the recovery of costs by either party in actions at law does not control.</p> <p>2. Power of Courts to refuse Taxation of Costs. — But trial courts in this as well as in other proceedings possess discretionary pow.er to refuse a taxation in respondent’s-favor of costs contumaciously or unreasonably incurred. And the legislature may make a reasonable regulation imposing upon him the payment of costs incurred upon an appeal by him from the award.</p> <p>8. When Statutory Deposit covers Costs. — The costs in question are a part of the judgment, which judgment is always conditional. If petitioner elects to take the title, or if he has secured preliminary possession under the statute, the deposit which he is required to make covers costs incurred by respondent as well as the value of the property taken, and no execution is necessary.</p> <p>4. Obtaining Illegal Possession of Pbopebtn. — 'Where judgment is entered for petitioner, and he obtains possession of the property without payment of the costs awarded respondent, such possession is to that extent illegal.</p>

■ Mandamus proceeding in the district court to compel the delivery of water for irrigation. The alternative writ was issued in favor of the petitioner Townsend. But on final hearing the finding and judgment were in favor of the defendant company. The petitioner appeals.

The following provisions of the constitution are referred to in the opinion: Article 16. “ Sec. 5. The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided. “ Sec. 6. The right to divert unappropriated waters of any natural stream to beneficial uses shall never be denied.

This was an application in the district court by “ The Greenwood Cemetery Land Company ” for a writ of mandamus.

This is one of several cases instituted in the court below for the purpose of determining the right to moneys received as interest by certain state treasurers upon state funds deposited in bank. The suits are against the treasurers and their bondsmen. During defendant in error Walsen’s term of office the bond of the treasurer was increased from $100,000 to $800,000, and Walsen, having theretofore given a bond in the former sum, filed an additional bond in the sum of $200,000.

The plaintiff in error, Mark Power, defendant below, was' indicted and convicted of murder of the first degree at the October term, 1890, of the district court of Montrose county. Upon application to this court a writ of error operating as a supersedeas was allowed for the purpose of reviewing the record of the cause.

Action by wife to recover damages for the death of ber husband. Mary Tenney was plaintiff, and David H. Moffatt, Jr., Jacob J. B. DuBois, H. A. W. Tabor and James G. Blaine were defendants, in the district court. The plaintiff obtained judgment for $5,000. The defendants bring this appeal.

<p> Appeal f rom District Court of Arapahoe County. </p>

This action was brought in the court below by John M. Knowles, defendant in error, to restrain plaintiffs in error, the city of Denver, et al., from collecting an assessment levied by the city upon certain lots owned by the defendant in error. The assessment was levied in proportion to the frontage of the lots upon the improvement.' It is for the costs of paving, constructing gutters, etc., on 16th street in said city.

Action for the recovery of real property. Appellant, Wilson Waddingham, plaintiff below, Claims title to 'the premises through a .government patent. Appellees claim title through certain tax sales. Upon the trial appellees introduced in evidence three tax deeds executed in pursuance of sales made for taxes for the years 1875, 1876 and 1877, the sales having been made in the years 1876, 1877 and 1878 respectively.

Action relating to tax sale. The finding and judgment were in favor of the St. Louis National Bank, plaintiff below. The defendants Morris and Thombs bring this appeal.

<p> Appeal from District Court of Gilpin County. </p> <p>. Adverse-'proceedings to determine the title to mining property.</p>

Ajopeal from District Court of ‘Pitkin County. Appellant, Fred H. Stocknan, count}’ clerk and recorder of Pitkin county, had the control and custody of the title records of said county. Appellees, Carlos W. Brooks, et al., were jointly engaged in the abstract business.

JSrror to Criminal Court of Arapahoe County.- In July, 1889, the secretary of state being absent, the duties of the position devolved upon plaintiff in error, Wyatt, who was his deputy. By virtue of law the control of the legislative halls and tbe custody of the legislative furniture and other state property therein was held by the secretary of state.

This is an appeal from the judgment of the Lake county district court in an action for the possession of mining property in the nature of an action of ejectment, and for damages. The writ was instituted by appellees, Peter Campbell et al., against appellant, the Iron Silver Mining Co., to recover possession of the Louisville mining lode claim.

<p>1. Deed — Correction of. — Where it appears that certain real estate was included in a deed, by mistake, the same may be corrected at the suit of the grantor.</p> <p>2. Trial — Presumptions to Findings by the Court. — When a cause is tried to a court without a jury upon oral evidence, the same presumptions in favor of the findings will be indulged in upon appeal as obtain in favor of verdicts by juries.</p>

Appellee, William Liehe, as plaintiff below in his complaint alleges the incorporation of the defendant, the Burlington & Colorado railroad company, the appellant here, and states : That the plaintiff was in the employ of defendant as a common laborer upon the road-bed and track of defendant company at the time of the injury complained of.

<p>Contested Election — Bubden of Pboof. — In a contested election case the burden oi proof is upon the contestor to sustain by a preponderance of the evidence the material averments of his petition.</p>

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

Action by original owner to recover land sold for taxes. Trial by tbe court without a jury; finding and judgment in favor of defendant. Plaintiff appeals. ■ ■ •

<p> Original Application for Prohibition. </p>

Action concerning the boundary line between Chaffee and Park counties. This cause was commenced by the Eddy & Bissell live stock .company, plaintiff, against the treasurer of Chaffee county and the treasurer of Park county, as defendants.

<p>1. Disbarment and Contempt op Court. — The same unprofessional conduct by an attorney may be ground for disbarment and likewise constitute a contempt of court.</p> <p>2. Scandal in Pleadings. — The attorney’s privilege does not authorize him to insert scandalous matter into written pleadings. While " such conduct may under such circumstances justify disbarment, it may also constitute a contempt of court.</p> <p>3. Definition of Scandalous Matter. — By scandalous matter is meant the “ allegation of anything which is unbecoming the digni-. ty of the court to hear, or is contrary to good manners, or which charges some person with a crime not necessary to be shown in the cause ; to which may be added, that any unnecessary allegation bearing cruelly upon the moral character of an individual is also, scandalous.”</p> <p>4. Remedy by Contempt — Proceedings.—Since in this class of offenses contempt proceedings.generally furnish sufficient protection to the courts and to the legal profession, this court will as a rule decline to entertain applications predicated thereon for disbarment.</p>

This was a condemnation proceeding under the act of eminent domain. Mills’ Ann. Statutes, chap. 45. The petitioner Davis claimed, and sought to procure, from the defendant, the Sand Creek Lateral Irrigation Company, a right of way through its ditch for the conveyance of water to irrigate his lands. He based such claim upon an act of the general assembly, approved Feb. 12,1881, Session Laws, p. 164; Mills’ Stats., sec. 2261, et seq. The act is as follows: “ Sec. 1.

Election Contest— Opinions upon Motion to strike out Parts of y the Complaint. This is an original proceeding, instituted in this court for the purpose of contesting an election in the Thirteenth Judicial District. In 1891 the legislature adopted, in a modified form, the Australian Ballot Law.

<p>1. Forcible Entry and Detainer — Questions presented. — In actions of forcible entry and detainer two questions are presented, viz. : Was plaintiff at tbe time of tbe entiy by defendant exercising sucb acts of dominion over the property as constitute actual possession in law; and did defendant forcibly deprive plaintiff of this possession ?</p> <p>2. Title not involved, but Character and Extent of Possessory Eights. — The ownership of the premises is not involved and title is not tried; but evidence of title is sometimes received for the purpose of showing the character and extent of the plaintiff’s possession or the origin of defendant’s'alleged right of possession.</p> <p>3. Judgment on Conflicting Evidence. — The supreme court will ordinarily not interfere with the findings or judgment of the trial judge predicated upon conflicting testimony; such testimony having been received in open court.</p> <p>4. Acts showing Legal Possession under Tax Deed. — M. received a tax deed in pursuance of purchase at a tax sale; he paid taxes • for the period of nine years thereafter; he posted a notice on the premises advertising it for sale by himself; he made a contract of lease, first verbal, afterwards written, with one Y. to occupy the premises for gardening purposes; he furnished posts and wire for fencing and plowed the ground; Y. set the posts and attached the wire thereto; under this arrangement for seven years the ground was plowed every year, three times by M. himself; M. gave ahorse and pony to Y. to aid in cultivating the premises; seven years after receiving his deed he had two surveys made and erected posts according to a new survey, putting wire on some of them: Held, that the foregoing acts showed actual possession inlaw: Held, also, that evidence tending to show that during the period named W., the lessor of P., deraigning title from the United States through patent and mesne conveyances, had constructed or partly constructed a fence around the premises, was not such an interruption of M.’s possession as to change M.’s legal status.</p> <p>5. Acts constituting a Forcible Entry upon the Property. — P. in collusion with others caused a frame dwelling to be moved upon the premises occupied by the lessee of M. ; nine or ten men and six teams were employed in the removal; not more than ten minutes were consumed in cutting the fence wires, digging up posts and getting the house upon the ground from the adjacent street: V., the agent of M., objected to the proceeding; P. immediately after the removal brought up furniture which was upon a wagon standing in a hollow near by, and took possession of the house: Held, that a forcible entry was sufficiently shown.</p> <p>6. Who may maintain Forcible Entry and Detainer. — The owner of realty may maintain in his own name the action of forcible entry and detainer, though the premises are at the time occupied by an agent under a verbal arrangement to take care of the same.</p>

Action of replevin. Julius F. Witkowski, plaintiff below, replevied certain goods and merchandise from the defendant Zeph T. Hill. The trial resulted in a finding and judgment in favor of the defendant for the return of the property, or, in case a return could not be had, that defendant recover from plaintiff the value thereof; also for damages and costs. The plaintiff brings this appeal.

The statute of 1887 considered in the following opinion reads: “ Sec. 1.

Action for the specific performance of a contract. The contract is evidenced by the following written instrument: “Pueblo, Colo., Jan. 6,1887. “ Received of C. H. Small, agent, fifty ($50.00) dollars, being a payment on block 43, Pueblo, Colorado, corner of High and River streets. Terms of purchase being two thousand ($2,000.00) cash, assume mortgage of Dr. McDonaid ($2,500), balance $5,000, to be paid in two years at 8 per cent.

In the complaint filed by H. H. Tomkins et al., it is alleged that plaintiffs were co-partners, and that as such co-partners they sold the defendants, Nathan S. Hurd and L. C. Rockwell et al., goods of the value of $3,746.22, upon open account. These goods were sold between the 1st day of September, 1884, and the 26th day of May, 1885, and that during that time $1,976.53 was paid upon said account, leaving a balance due of $1,769.69.

Charles Heidseick, as plaintiff in the district court, commenced his action, making plaintiff in error, Cyrus G. Richardson, the sole defendant. Afterwards, by leave of the court, he filed an amended complaint, making the city of Denver also a party defendant.

This is an agreed case calling for a construction of the third subdivision of the Colorado statute of descents and distributions. The statute as published in Mills’ Ann. Stats., vol.

This action was brought by appellee as plaintiff below. In tbe complaint it is alleged, inter alia, that on and prior to May 30, 1887, he was the owner and controlled 330 shares of capital stock of The Denver Fire Brick Co. This company was organized in 1880 under the laws of the state of Colorado by the plaintiff Murray, and the defendants, Schwartz and Lynn, and one W. J. Shiek. The business of the organization was to manufacture fire brick and like products.

¡Error to District Court of Garfield County. Action of unlawful detainer. Cravens was plaintiff below. The judgment was in favor of the defendant Bennett. The plaintiff brings the case to this court by writ of error.

Rrror to District Court of Clear Creek County. . Action against a mining corporation by one of its directors to recover compensation as managing director. Judgment of nonsuit.

Action to recover for labor and material and to foreclose lien upon real estate. Tbe plaintiff Mann brought suit against one Charles B. Farnum to recover for filling and grading certain lots. The original complaint was founded upon ati express oral agreement between Farnum, the owner of the lots, and one Quimby, the plaintiff being the assignee of Quimby. The whole amount claimed, based upon an agreed price per cubic yard, amounted to $653.33.

<p> Original Proceeding. </p>

Action for malicious prosecution. The prosecution eorn‘plained of as malicious was commenced in February, 1884, by Rust, Harris & Co., a Denver firm, against H. H. Tomkins & Co., a Leadville firm, to recover an.alleged balance upon book account for goods sold and delivered. In November, 1884,- Charles D. Gurley became assignee of Rust, Harris & Co. for the ■ benefit of their creditors, and was substituted as plaintiff in the action.

Injunction against interference with water right. Michael Guerrerio, plaintiff below, brought this action against four different defendants, Albert J. and George W. Saint, William and John Mansfield, to restrain them from interfering with his use of the waters of the Dry or West Fork of Elk Creek for purposes of irrigation. The plaintiff filed three different complaints.

Injunction against obstructing public highway. This was an action brought by the public authorities of Lake county, Colorado, against Thomas Starr and others, defendants below, charging them with obstructing and threatening to dig up, wash out, and destroy a certain county road, alleging that said acts of defendants are a purpresture and a nuisance to the public highway.

Appellants, Hayes & McGilvray, being contractors and builders, were engaged in performing ceitain work upon a building fronting on Lawrence street in the city of Denver. In connection with this work they erected a derrick which was held in position by means of “ head ” or “ back ” ropes attached to the building and a guy rope extending through the derrick and across the street in different directions, the ends being fastened to posts on the opposite side.

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

This case was submitted to the court below mainly on an agreed statement of facts. From this it appears that JohnS. Fillmore died at the county of Arapahoe on the 1st day of December, 1864, leaving as his sole heirs at law his widow, Elizabeth M. Fillmore, and two minor sons, John Norman Fillmore and John Septa Fillmore. On the 20th day of the same month Amos Steck and others were appointed administrators upon his estate and duly qualified as such.

On January 30,1883, Daniel R. Clay, being the owner and possessed of certain lots in the city of Denver, executed and delivered to James R. Ives, as trustee, a trust deed upon said premises to secure to plaintiff Stephens the payment of his promissory note for $1,000 borrowed of him, with interest at 10 per cent.

<p>1. Common Law Dedication. — Intent op Owner. — Common law dedications, when a prescriptive right has not attached, rest upon the actual intent of the owner of the property. This intent is to be. established as any other fact, by evidence. It must cleai'ly appear ; but no particular formality is required nor is any unusual limitation placed upon the kind of proof to be received.</p> <p>2. Estoppel in Pais — Circumstances constituting. — Such dedications operate by way of estoppel in pais, and the circumstances constituting the estoppel itself consist of acts showing the owner’s intent, or of acts coupled with declarations by him.</p> <p>3. Res Gestas : Declarations and Acts op Owner become. — Where the intent is the specific subject of inquiry, declarations made by the owner of the property in connection with acts relied upon as constituting the dedication, become in law.a part of the res gestee. These declarations are then admissible, whether they tend to show that the acts were performed with an intent to dedicate or the converse, and whether offered by the original owner or his successor, or by the opposing party.</p> <p>4. New Trial : Discretion of Nisi Prius Courts. — Nisi prius courts possess some discretionary power in the granting of motions for a new trial, and reviewing tribunals interfere with great reluctance to reverse orders allowing the same.</p>

On the 31st day of August, 1887, appellee received au injury, to recover damages for which the present suit was brought. The appellant company was then constructing its road bed between Colorado Springs and Leadville. Appellee was a common laborer in appellant’s employ, being engaged, in the immediate work of bedding the ties.

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

Ejectment by Jane C. Brown, appellee, against John D. Fee, appellant, to recover possession of certain lands in Pueblo county. Judgment in favor of Mrs. Brown; appeal by Fee.

This action was instituted by Edward E. Hinckley, appellant, against Samuel M. Carleton and Hugh Butler. It is for work and labor performed upon the Ella Beeler mine, between the 7th day of September, 1885, and the 28th day of January, 1886, inclusive, by the plaintiff, Elmer E. Hinckley, Charles H. Metcalf and Leeland E. Cook; plaintiff averring an assignment to him of the claims of Hinckley, Metcalf and Cook.

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

Application in the district court for a writ of mandamus. Judgment for respondent. Petitioner brings the record to this court for review by writ of error.

Action by administrator to remove cloud from title to certain real estate alleged to belong to his intestate. Judgment for plaintiff. Defendant appeals.

<p>Disbarment — Quantum of Proof. — A judgment of disbarment should be pronounced only upon olear and convincing evidence, and this rule is pre-eminently appropriate where, as in this case, the offense charged is cognizable by the criminal code.</p>

This action was instituted by the defendant in error, F. D. Catlin, to compel plaintiff in error as county clerk and recorder of Montrose county, to permit the defendant in error and one employee or two. employees to have access to the records and filings of the office of said county clerk and recorder.

In 1883 one Vanderweyden, being indebted to appellee Steiger in the sum of $1,300, executed his promissory note therefor, and to secure the same gave a chattel mortgage upon a certain frame building in the city óf Denver, together with “ all the furniture in said house.” Upon the premises at this time and belonging to Vanderweyden was a piano, which instrument is the subject of the present controversy. The mortgage in question was duly recorded.

<p> Error to Criminal Court of Arapahoe County. </p> <p>Indictment and conviction for seduction under promise of marriage.</p>

Appellee, Patrick Mannix, brought this action to recover damages for the death of his son William, a minor fourteen years of age. The injury causing death is alleged to have resulted from the negligence of appellants, J. B. Orman et al., in whose employ the deceased was at the time. They were copartners engaged in the business of contracting and building railroads.

This action was originally commenced before a justice of the peace. Upon appeal in the superior court, finding and judgment were rendered in favor of the plaintiff, Austin. The defendant Me Clair brings this appeal.

This action was brought by the Belleville Pump & Skein Works, appellee, as plaintiff below, upon a promissory note. The complaint, which is verified, contains a copy of the note inliaee verba, with an allegation that the same has not been paid, or any part thereof. The answer is a general denial unverified. In the court below judgment was rendered in favor of the plaintiff upon the pleadings.

Action to restrain the city of Denver from removing railroad from street. Appellees were plaintiffs below; the case was submitted upon the evidence introduced in their behalf ; the defendant city offered no evidence.

Proceeding by mandamus against the state auditor to compel him to issue his warrant for a certain legislative appropriation. Hon. John W. Wingate, treasurer of the Soldiers’ and Sailors’ Home, was relator, and Hon. John M. Henderson, auditor of the State of Colorado, was respondent below. A peremptory writ of mandamus was awarded against respondent in favor of relator. Respondent seeks a reversal of the judgment by writ of error.

This is a suit upon a promissory note. The note is set forth in hoee verla in the complaint, and reads as follows: “$577 Castle Rook, Colo. July 21,1836. “ One year after date I promise to pay to the order of E. R. Benton, $577 at Castle Rock, value received, with interest at one per cent per month until paid, interest payable every six months. (Signed) Daniel Fitch, Hugh Taylor, Benj.

<p> Error to Criminal Court of Arapahoe County. </p>

<p> Error to District Court of Ouray County. </p>