Volume 18 — Colorado Reports

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

This action was instituted by John M. Abbott et al., plaintiffs in error, against the board of county commissioners of the county of Yuma et al., for the purpose of restraining the defendants from issuing bonds of Yuma county in satisfaction of certain judgments appearing of record against the county. The section of the statute under which the board was attempting to proceed at the time, reads as follows: “ Sec. 2.

Action to recover treble damages for the seizure of exempt property.

<p>1. New Trial, when of Right.,</p> <p>Any party against whom judgment is rendered in an action to recover possession of real property under chapter, 23 of the Code, may have one new trial “ as of right without showing cause,” upon complying with the following terms : first, he must, before the first day of the next succeeding term, pay all the costs recovered by such judgment; and, second, he must apply to the court to vacate such judgment and grant a new trial within reasonable time.</p> <p>2. Mode of Application.</p> <p>The manner of making application for a new trial in such cases may be by motion in the usual form, though not necessarily in writing.</p> <p>3. Time of Application.</p> <p>An application, made at the second term next succeeding the term at which the judgment was rendered and after a writ of possession has been applied for by the successful party, is not in time.</p> <p>4. Quorum of Supreme Court.</p> <p>The supreme court of this state is duly organized and competent to exercise jurisdiction as such court so long as two judges of said court are duly qualified in their office.</p>

Original Proceeding. A convention of the Democratic party of the state of Colorado recently convened in the city of Pueblo. This convention appears to have been regularly called in accordance with the practices of the party in such cases for the purpose of nominating presidential electors and a full state ticket to be voted for at the approaching election. Upon the assembling of this convention, a disagreement arose between the members.

M’ror to the District Court of Arapahoe County. Plaintiff in error, as plaintiff below, filed bis complaint in three counts.

Appellee, William B. Craig, as plaintiff below, for a first cause of action alleges: That about March 1, 1885, plaintiff owned and was possessed of five hundred sheep of the value of two dollars each. That on said date, in the county of Arapahoe and state of Colorado, defendant unlawfully took, carried away, and converted said sheep and disposed of the same to his own use to plaintiff’s damage in the sum of $1,000. A demand and refusal to return the sheep is also averred.

Appellee, Washington I. Jenkins, in his complaint bases his light to recover on the following allegations: That on the 8th day of September, 1883, at Weston, Mo., Railey & Bro., bankers, made their draft on Donnell, Lawson & Simpson of New York, payable to the order of John H. Hall, for $1,997.

Action to recover possession of real estate. Appellee Whittick was plaintiff below. Wright and wife were defendants. Plaintiff claimed title to the premises by virtue of a trustee’s deed, based upon the foreclosure of a trust deed purporting to have been executed by defendants. Plaintiff further claimed title by virtue of a quitclaim deed executed by Mr. Wright alone.

Action to recover compensation for work and labor. Otis, the plaintiff below, brought this action originally against James Rose and Elizabeth Rose, husband and wife, as joint defendants, to recover for work and labor performed by him as a gardener and general laborer for the defendants and at their request. The complaint was based upon a quanturn meruit for such services from December 1,1882, to June 1, 1887, — four and a half years.

Action for damages. Judgment in favor of defendant for oosts only. Plaintiff undertakes to prosecute an appeal in this court.

Action in the nature of a bill in equity to compel the ■specific performance of an alleged contract respecting certain real estate, or, to procure a decree declaring a trust in such real estate in favor of plaintiff. Trial and judgment in favor of defendant. Plaintiff brings this appeal.

Action by David Downen, plaintiff below, against The Perchero n-Norman Horse Company, defendant, for breach of contract. The cause being at issue was by consent of parties in open court referred to Hon. Lucius P. Marsh to try all matters whether of law or of fact, and report finding and judgment. The matters in controversy between the parties sufficiently appear in the opinion.

Action to recover an alleged balance for personal services. This action was originally commenced before a justice of the peace. In the justice’s court the plaintiff recovered judgment for a little over $200. In the county court, on appeal, plaintiff again recovered judgment for 1135. From the latter judgment the defendant company appeals to this court.

Indictment for violation of the statute concerning the sale, and offer for sale, of certain fresh meats without having the same inspected. Julius F. Schmidt, the defendant below, having been convicted and sentenced under said statute, brings the cause to this court by writ of error.

Action upon a promissory note by Wilson Bros., payees, against Samuel McClair, maker. The answer admitted the due execution and nonpayment of the note. Defendant pleaded that the note was executed under duress; he also pleaded a counterclaim. Plaintiffs demurred to the answer; the demurrer was sustained; and, defendant electing to abide by his answer, judgment was rendered in favor of plaintiffs for the amount of the note.

Appellee, Emanuel H. Saltiel, brought this action in the district court to recover the sum of $2,000 upon an express contract for commissions for the sale of real estate situate in the city of Denver. The cause was tried three times in the court below. Upon the first and second trials the jury disagreed. The third resulted in a verdict and judgment for the plaintiff for the sum of $2,000, from which judgment this appeal is taken.

JSrror to the District Court of Arapahoe County. Action for the recovery of money paid out and expended by the plaintiff for the defendant at her special instance and request. Judgment of nonsuit. Plaintiff brings the cause to this court by writ of error.

Brror to the District Court of Boulder County. Plaintiff in error, The Struby-Estabrook Mercantile Company, a corporation, on January 28, 1889, obtained a judgment in the district court of Arapahoe county against defendant in error, George F. Davis. On the same day an execution was issued upon this judgment and placed in the hands of plaintiff in error, Hansbrough, who was then sheriff of Boulder county, for execution.

Plaintiee in error, The Institute for the Education of the Mute and Blind, as plaintiff below, brought this action for the purpose of compelling the auditor of state to draw his warrant for the amount of an appropriation made bjr the last general assembly for the maintenance of the plaintiff institution. The auditor as a defense to the action claims that there were no funds in the state treasury wherewith to pay the appropriation.

The complaint alleges that The Robert E. Lee Silver Mining Company, plaintiff in error here and defendant below, is indebted to A. L. Englebach et al., defendants in error, in the sum of 1573.32 for materials and work furnished between November 1, 1886, and the 10th day of November, 1888. Two bills of particulars were furnished covering the amount claimed. It is claimed that the items included in the first bill were ordered by Wm.

<p> Error to the Superior Court of the City of Denver. </p>

<p> Appeal from the District Court of Arapahoe County. </p> <p>Action for personal injuries. Judgment for plaintiff. Appeal by defendant.</p>

Action for damages occasioned by street excavation in front of plaintiff’s premises. Appellee Luttrell was plaintiff below. The city of Durango was defendant.' Verdict and judgment for plaintiff. The defendant brings this appeal.

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

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

The Greenwood Cemetery Land Company brought this action to compel John L. Routt, Edwin J. Eaton, Joseph H. Maupin and N. B. Coy, as the Board of State Land Commissioners, and Matt. France, register of the board, to receive the money tendered them as the balance of the purchase price for a certain piece of land, and to execute a patent therefor to the company.- On final hearing a peremptory writ of mandamus was ordered. To reverse this judgment respondents bring this appeal.

Action concerning water rights for irrigation. Appellants were plaintiffs below, and obtained a preliminary injunction against appellees. The cause was tried upon the merits, and resulted in a finding in favor of defendants. The injunction wfjs thereupon dissolved and the action dismissed. The plaintiffs bring this appeal.

The complaint in this action states in substance that on or about March 1, 1885, Lewis A. Hopkins, plaintiff below, purchased from Annie E. Roberts the E. \ of the W. ¶ of the S. E. ¶ of Sec. 34, Tp. 6 N., E. 65 W., together with a ditch known as “ Sand Creek Lateral,” and all her right, title and interest to a share of the water derived therefrom, for the consideration of $375.

Petition by Abbie A. Israel to the county court to be recognized as the widow and heir of John Arthur, deceased, and to be adjudged sole distributee of his estate, he having died without children. Petition denied. Petitioner brings the record of the proceedings to this court by writ of error. A sufficient statement of the facts of this litigation will be found in Israel v. Arthur, 7 Colo. 5, and Arthur v. Israel, 15 Colo. 147.

Suit in equity to enjoin the collection of a judgment. Decree in favor of plaintiffs. Writ of error sued out by defendant.

<p>1. Criminal Trials. Duty of Court.</p> <p>In a criminal case it is the duty of the court to see that the trial is conducted according to law, and the jury properly instructed.</p> <p>2. Hearsay. Evidence.</p> <p>Hearsay evidence is generally inadmissible, but to this well established rule there are some exceptions.</p> <p>3. Statements of the Deceased in Homicide Cases.</p> <p>In a trial for murder by poisoning, the statements of the deceased in narration of past events, voicing her suspicions as to the sender of the poison, are incompetent.</p> <p>4. Dying Declarations.</p> <p>Where it is shown that the deceased at the time of making certain statements expected to recover, such statements are not receivable in evidence as dying declarations.</p> <p>5. Res Gestíe.</p> <p>Res gestee are events speaking for themselves through the instinctive words and acts of participants, not the words and acts of participants when narrating the events.</p> <p>6. Objections to Improper Evidence. When sufficiently made.</p> <p>Where the record shows that at the time a certain class of evidence was first offered its admission was vigorously opposed, the objections to its introduction then fully argued and renewed upon a motion to strike out, held sufficient to reserve the point, without a renewal of the objection to each question thereafter propounded.</p> <p>7. Circumstantial Evidence. Link in Chain of.</p> <p>Where the evidence in a criminal case is wholly circumstantial, it is error to instruct the jury that they need not be satisfied beyond a reasonable doubt of each link in the chain of circumstances relied upon to establish the defendant’s guilt.</p>

Disbarment Proceeding in this Court. By statute no person is permitted to practice as an attorney or counselor at law in the courts of record.of this state without having previously obtained a license for that purpose from two or more justices of the supreme court, and having his name inscribed on the roll of attorneys. The supreme court is also empowered to strike the name of an attorney or counselor at law from said.roll for malconduet in his office: 1 Mills’ An.

The opinion of the court is in response to the following resolution and request of the senate. ' “Whereas, the Constitution, in section 33, article V, provides that no money ‘shall be paid out of the treasury, except upon appropriations made by law ; ’ and, “Whereas, certain acts of the general assembly have provided for continuing appropriations instead of specific appropriations, from the general or special funds in the hands of the state treasurer; particularly, the…

The secretary of the senate sent the following communication to the justices of the supreme court: “ I am instructed by tbe Honorable Senate to submit Senate Bill No. 11 to your Honors for an opinion as to its constitutionality.” The communication was accompanied by the bill, but no specific question or questions were submitted. Per Curiam.

JError to the District Court of Arapahoe County. On the 15th day of March, 1887, the defendant Fisk, in consummation of an arrangement between himself and four associates, entered into a written agreement with the defendant Clark, wherein Clark, in consideration of the sum of $5,000 (in hand paid), contracted and agreed to sell to Fisk certain real estate near Denver, and execute and deliver good and sufficient deeds therefor upon the payment of $175,000 as follows: Five…

Joesph C. Knowles brought this action to compel the de-' fendant in error to furnish water to be used upon- a certain tract of land during the irrigating season of 1888. An alternative writ of mandamus was issued, setting forth that he was the owner of the land described, and owner of one-half share of the stock of defendant company, which entitled him to seventy inches of water which he was entitled to use upon said land.

The appellee, The Denver, Utah & Pacific Railroad Company, commenced this action in the district court, upon a written contract, the terms of which are in substance as follows :— 1st. The St. Vrain Stone Company agrees to sell and convey to Stout, Gallagher & Lay, eighty acres of land and some personal property in Boulder county, Colorado. 2d. Stout, Gallagher & Lay agree to pay therefor $8,000 in cash, and give four promissory notes; two for the sum of $750 each, payable in…

Mrror to the County Court of JSl Paso County. Held: nor upon the oath of any individual. Upon this information a warrant was issued upon which plaintiffs in error were arrested and brought into court. A motion to quash the indictment was afterward interposed for the following reason, inter alia ; because such information was not verified or presented upon the oath of any party.

The opinion is in response to the following communication and interrogatory from the governor: To the Honorable, the Judiciary ) ,■ ■> ... ¿ of the Supreme Court. ¡ Quesfclon suWte .

Action to recover possession of certain real estate. Finding and judgment for plaintiffs. Defendant appeals. Appellant Kretschmer, defendant below, claimed title to the premises in controversy under a patent from the state of Colorado to one Annie E. Hanlon, dated February 15, 1886, and issued in pursuance of a sale by tbe state board of land commissioners on August 13, 1883.

The opinion, of the court is in response to the following question by the house of representatives: “Does the general assembly possess power, under the constitution of the state of Colorado, to provide for the establishment and maintenance of a kindergarten department in the public school system of the state, and for the education therein of children of an age less than six years ? ”

Original proceeding for disbarment. This proceeding was instituted on June 23, 1892, by tbe attorney general in behalf of the people, to procure the disbarment of the respondent for malconduct in his office as a duly licensed attorney and counselor at law. The relator alleges two grounds upon which such malconduct is predicated.

This action was brought by Mrs. P. Q. McComb against school district No. 26, Huerfano county, Colorado, to recover on account of being discharged and prevented from performing her duties as a teacher under a written contract dated October 15, 1888, whereby she was employed to teach school for. district No. 26 in Huerfano county for the period of six months, at $45 per month.

<p>1. Appellate Practice.</p> <p>A case which might have been, in the first instance, taken either to the supreme court or court of appeals, may, upon its removal to the court of appeals by one party, be removed to the supreme court by the other party by motion interposed in apt time.</p> <p>2. When Writ oe Error libs in behale oe the People.</p> <p>The right of the x>eople to sue out a writ of error in a criminal case ‘ exists only when conferred by statute, and by one expressed in the most plain and unequivocal terms.</p> <p>3. ( Court .op Appeals — Statutory Construction.</p> <p>Nq Intent is manifested in the statute establishing the court of appeals and defining its jurisdiction to change the practice in either civil or criminal cases, but its whole tenor and effect is to provide -for the exercise of that jurisdiction in conformity with the general procedure and practice then existing, so far as it is applicable, and the general terms therein used should be read in the light .of that purpose.</p> <p>4. Writ of Error.</p> <p>A writ of error does not lie in behalf of the people in a criminal case.</p>

On October 3, 1881, Joel W. Smith and H. A. W. Tabor deposited in the bank of Leadville, to the credit of J. F. Chancy and N. N. Atkinson, appellees herein, the sum of §85,200, upon a contract for the purchase of certain mining property. Immediately after making the deposit, Smith and Tabor, alleging some defect in the title to the property purchased, sued out an injunction- restraining the bank from paying over any part of the sum so- deposited.

Mandamus proceeding in the district court. Demurrer to alternative writ overruled, and peremptory writ awarded. In the court of appeals the judgment of the district court was reversed. Petitioner brings the cause to. this court for final review. The following provisions of the constitution are referred to in the opinion: Article V. “ Sec. 17.

Bv the amended complaint of Thomas J. Burke, C. A. Weed and R. L. Hopkins are made defendants.

<p>1. Constitutional Law.</p> <p>The constitution, declares that when salaries are provided for county . officers the same shall he payable only out of the fees actually collected.</p> <p>2. Same — County Jud&es.</p> <p>County judges are county officers within the meaning of the constitution.</p> <p>3. Same.</p> <p>The constitution does not permit salaries to be paid county judges, except from the fees actually collected.</p>

<p>Constitutional Law.</p> <p>The general assembly has power to make an appropriation to reimburse county treasurers for the money expended by them under the bounty act of 1889, notwithstanding the manner provided in said act for such payments was unconstitutional.</p>

Original proceeding in this court. This proceeding was instituted by Emery A. Smith to contest the election of Ira Harris, as county judge of El Paso county.

JSrror to the County Court of Arapahoe County. Action for forcible entry and unlawful detainer and for damages thereby occasioned. Finding and judgment for plaintiff. Defendants bring the cause- to, this court by writ of error.

Action commenced by D. W. Fenner, before J. S. McMun, justice of the peace, within and for the county of Eagle. Writ of replevin issued upon the first day of November, 1889. A trial before the justice resulted in a verdict and judgment for the plaintiff. Appeal taken to the county court, where the case was again tried with the same result.

<p> Application for a Rule. </p>

The opinion of the court was given in response to a resolution by the honorable house of representatives, having reference to the constitutionality of a bill for an act entitled, “An. Act to revise and amend the charter of the city of Denver.”

The opinion of the court is in response to the following question submitted by the senate: “ When a bill or act declares an emergency to exist, and directs an act to take effect upon its passage in the body of the act, under section 19 of article 5 of .the Constitution, is a majority vote sufficient to pass such emergency clause and make the same effective, or does it require a vote of two-thirds to declare an emergency in any event ? ”

Original proceeding in this court for writ of certiorari- and prohibition,.

the Oourt of Appeals; original appeal being from the District Oourt of Weld Gounty.

The opinion of the court is in response to the following preamble and resolution submitted by the Honorable the House of Representatives: “ Whereas there is now pending in the Ninth General Assembly of the State of Colorado, Bills appropriating all of the available revenues of the State for the years 1893 and 1894, under the General Appropriation Bill, World’s Fair Appropriation, Appropriations for Buildings for State Institutions and maintenance of State Institutions, and,…

The indictment charges plaintiffs in error with promoting, advertising, and carrying on a lottery and gift enterprise in the city of Denver, county of Arapahoe and State of Colorado.

This action was brought in the district court of Pitkin county, under section 3283, page 953 of the General Statutes, to determine the right to a conveyance of lots F, G, H and I, in block 86, in the town site of Aspen.

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

Appellee, The Eaton Milling & Elevator Company, a corporation, was organized inT887. At the first meeting of the directors, Benjamin H. Eaton was elected president, William B. Grant secretary, and appellant, William N. Nice, treasurer, and also manager. The company entered upon active business operations on July 20, 1887. and carried on, for a time, a milling and elevator business at Eaton, Colorado.

<p>1. Agency — Joint Power.</p> <p>A power to sell real estate conferred upon two persons jointly must be ' executed by both.</p> <p>2. Agent, Power oe.</p> <p>An authority to sell real estate for cash does not empower the agent to . .sell upon credit.</p> <p>An act performed by an agent after the term of his agency had expired by express limitation, is without effect.</p>

The appellees conveyed to Byron Shear and I. L. Johnson the Boulder, Nebraska and Topsy lode mining claims, situate in Pitkin county, Colorado, on the 8th day of August, 1888, for one dollar and other valuable considerations. On the same date an agreement was entered into by the respective parties wherein, among other things, it was stipulated that an additional $40,000 was to be paid, under certain conditions therein specified, as a consideration for the property.

This proceeding was instituted by appellee to condemn a right of way across the land of appellant, for a ditch to convey water for certain purposes. A hearing was had before a jury in pursuance of the pro visions of the eminent domain act, and they found: First.

Motion of appellees to dismiss appeal. Appellants were plaintiffs below. The relief sought in the district court was in substance as follows: 1. To impeach, set aside, and hold for naught certain judgments and decrees rendered by another court of record. 2. To vacate, set aside and declare null and void certain sales and conveyances of real property. 3.

The opinion is in response to the following communication and interrogatories from the governor: “ To the Honorable, the Supreme Court of Colorado :— “ A question of serious import has arisen in the state board of land commissioners, and a resolution was passed at its last meeting, Tuesday, April 11th, 1893, directing me as president of said board, and governor of the state, under article VI, section 3, of the State Constitution, to secure from your Honorable Court, an…

The action is brought by Mary E. Shean, the wife, and in behalf of Moses, Josephine and Mary Shean, the children of Thomas Shean, deceased, to recover damages against the railroad company for wrongfully causing the death of said Thomas Shean. The facts are as follows : Thomas Shean was a passanger for hire from Kansas City, Missouri, to San Francisco, California, on thh appellant company’s cars.

On the 8th day of June, 1889, James Connor, Charles Connor and James Marshall were indicted in the district court of Arapahoe county for a conspiracy to rob the D. & R. G. R. Company. The indictment contained five counts, charging the offense in various forms. On the 5th day of October, 1889, the cause came on for trial, and upon the 28th day of October, 1889, a verdict of guilty against the defendants was returned upon all the counts of the indictment.

Proceedings for the appointment of a conservator. The proceeding was instituted in the county court, under see. 2935, Mills’ Annotated Statutes.

<p>1. Mechanics’ Lien Act, 1881.</p> <p>A purchaser or encumbrancer of property upon which a mechanic’s lien is filed is chargeable with notice thereof by virtue of the mechanics’ lien statute itself, without the filing of a notice of lis pendens. The enforcement of mechanics’ liens should be favored by a liberal construction of the statute.</p> <p>2. Assignment of Judgment.</p> <p>An assignment of a judgment, not in good faith, does not convey title to the assignee.</p> <p>3. Possession and Title.</p> <p>Neither the possession of nor the legal title to the land upon which the mechanics’ lien is claimed is necessarily conclusive of the mechanic’s or laborer’s right to a lien upon such land or upon the structure which he has constructed thereon.</p>

The opinion of the court is in response to the following resolution and interrogatories: “Whereas doubts exist as to the constitutionality of senate bill No. 333, therefore, be it resolved by the senate of the state of Colorado that the supreme court be respectfully requested to answer the following interrogations: “ jFirst.

This action was commenced in the district court of Lake county to.recover the sum of $11,380.70. The appellee alleges in his complaint that this amount was due for work and labor performed, and materials furnished, upon the property of the St. Kevin Mining Company, at its special instance and request. He sues to establish a mechanic’s lien upon certain real property of the defendant company for the amount of his claim.

JError to the District Court of Arapahoe County. Action to recover damages for breach of contract to convey certain mining property, and to have the amount recovered declared a lien upon such property. The demurrer to the amended complaint was sustained, and judgment was rendered for defendants, dismissing the action. Plaintiffs bring the cause to this court by writ of error.

Action to recover damages for the conversion of personal property. Verdict and judgment for plaintiff. Defendant appeals. When the cause of action herein arose, and long prior thereto, the plaintiff Cole was the owner of a large ranch, containing about 900 acres, situate in Jefferson county, Colorado. In the fall of 1887, Cole leased the ranch to one Banning for a term of three years from November 1,1887, to November 1, 1890.

This is a controversy in reference to the title to lots numbers twenty-seven and twenty-eight, in block sixty-six, Stevens & Leiter’s subdivision of U. S. Survey No. 271, in the city of Leadville, county of Lake, and state .of Colorado. The complaint is in the form usually adopted under the. code for possession and damages for the detention of real property.

Drror to the District Court of Arapahoe- County. By stipulation this case was referred to I. E. Barnum, Esq., as referee, to determine the facts and the law.

This proceeding was instituted by Hurd in the district court of Arapahoe county, for a writ of mandamus to compel Carlile, as state treasurer, to pay certain warrants. The issuance of an alternative writ was waived and demurrer was interposed upon the ground that the petition did not state facts sufficient to constitute a cause of action. The demurrer was overruled and the writ ordered. From this judgment Carlile sued out a writ of error from the court of appeals.

From the record it appears that on the 27th day of March, 1882, Joseph W. Bowles, then guardian of William B. Orman and Franklin H. Orman, minors, published a notice in the South Pueblo News, a daily newspaper printed and published at Pueblo, that at the next term of the district court sitting in and for Pueblo county to be holden on the third-Monday of April, 1882, he would apply for an order to sell the following described real estate belonging to said minors, to wit : The…

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

This action was brought by appellee to recover damages sustained by her, by reason of the defective and dangerous character of a county bridge. In the court below the plaintiff obtained judgment for the sum of $500. From this judgment the county appeals.

This action was brought under the statute, by appellee as plaintiff, to recover damages for the death of her unmarried son, alleged to have resulted from the negligence of the defendant. The trial resulted in a verdict and judgment in favor of plaintiff for $3,500.

The Hickory Jackson Ditch Company filed its petition in the county court of Conejos county to condemn a right of way for a ditch across certain lands of the Southwestern Land Company.

Action in replevin. Casper M. Coston commenced an action in replevin before a justice of the peace to recover the possession of a span of mules. On appeal to the county court the cause was tried to a jury. Verdict and judgment in favor of the plaintiff. Defendant Dawson appeals from that judgment, and assigns as error: First. The overruling of his motion for a continuance. Second. Error in giving instructions asked for by plaintiff. Third.

JSrror to the County Court of Arapahoe County. Action by real estate broker for commissions; action commenced before a justice of the peace. There being no written pleadings, the nature and cause of the action, as well as the grounds of defence, must be ascertained from the evidence. On appeal to the county court a trial was had, resulting in a finding and judgment for the defendant, Richardson. The plaintiff, Castner, brings the cause to this court by writ of error.

<p> Original Application in this Court for Writ of Mandamus. </p>

<p>1. Appellate Practice — Appeal ebom Court oe Appeals.</p> <p>An appeal from the court of appeals must be perfected, and a writ of error made a supersedeas, in the same manner as in cases brought from other courts.</p> <p>2. Same.</p> <p>The record must be filed on or before the third day of the term next succeeding the time of making the appeal, provided there be thirty days between the time of making the appeal and the sitting of^ the supreme court. A failure to file the record within the time prescribed is ground for dismissing the appeal.</p>

In 1886, George W. Hall, the owner of the Monitor Extension Lode mining claim, applied for a patent to the same. Kearney and Nolan, claiming to be the owners of the John Randolph and Roscoe Lode mining claims, both conflicting with the Monitor Extension location, instituted this suit in support of two adverse claims filed by them against Hall’s application for a patent.

The appellant, Alfred S. Ellet, was plaintiff below, and by his guardian brought this suit in the district court in support of an adverse claim to a certain mineral lode or vein situate in Gold Hill mining district, Boulder county, Colorado.

Original Proceeding. Petition of Alfred Packer for a writ of habeas corpus. At the April term, A. D. 1883, of the district court of Hinsdale county, the grand jury returned five separate indictments for murder against this petitioner. The cases were afterwards docketed in the district court, numbered respectively 237, 238, 239, 240 and 241. The indictments all charged that the offenses were committed by the prisoner in Hinsdale county, on the first day of March, 1874.

This action was instituted by the appellee in the district court of Arapahoe county to recover from the appellant a part of a commission received by him on account of a certain real estate transaction.

Action upon promissory notes by administrator of the payee against the maker. Verdict and judgment for plaintiff. Defendant appéals.

Appellees in the court below recovered the sum of 1833.20, as damages alleged to have resulted from a breach of contract of lease. The lease out of which the suit originated covered a portion of the Munsell Lode mining claim in Clear Creek county. This claim was at the time owned by appellant. It had upon it a tunnel 550 feet in length, and at the breast of this tunnel a shaft 55 feet in depth.

.Error to the District Court of Arehuleta County. Plaintiff in error, a nonresident owner of property situate in Archuleta county, filed his petition befpre the county commissioners of that county complaining of the assessment of his property for taxation by the county assessor. By the petition it is shown that he is the owner of that part of the Tierra Amarilla grant situate in Archuleta county, comprising about 86,000 acres of land.

Original Proceeding. Petition for a writ of prohibition. The city of Highlands is a city of the second class, organized under the general law of the state of Colorado. At an election held therein on the 4th day of April, 1893, William W. Booth and Allison Stocker were opposing candidates for the office of mayor.

The opinion is in response to the following communication and interrogatory from the Governor: “ To the Honorable, the Supreme Court of Colorado : “ The ninth general assembly passed an act which was approved April 7, 1893, providing for the completion of the state capitol building, and payment for the same.

Original Proceeding in this Court for Contempt. The facts necessary to an understanding of the opinion are as follows : A little more than three years ago, James,Connor,. Charles Connor and James W. Marshall, having been convicted in the district court of Arapahoe county for conspiracy and sentenced to a term of imprisonment in the county jail, brought the record of such conviction to this court for review.

This is an action upon an undertaking given in pursuance of sections 111 and 112 of the Code of Civil Procedure to release attached property.

Drror to the District Court of Park County. Action against a railway company for the killing of a horse. This action was founded upon chapter 93, General Statutes 1883, as amended by the Acts of 1885. Section 13 and amended sections 14 and 15 are as follows: “ Sec. 13.

Appeal to the District Court of Arapahoe County. Action to set aside award of arbitrators. Award made by Alfred Butters, Dennis Sheedy and Alva Adams. The two former were first selected by the parties. Afterwards, by consent, Governor Adams was called in as a third arbitrator upon two of the accounts submitted. The parties to the suit are brothers, and are both wealthy. For a long time they were partners together in the cattle business.

<p>1. Mining Claims.</p> <p>The acquisition of title to a mining claim upon public land is conditioned upon discovery and location; and the condition upon which title may be held until patent issues, is the performance of the annual development work.</p> <p>.2. Mining Claims — Abandonment and Re-location.</p> <p>Upon failure to perform the annual development work, the territory becomes abandoned in the sense that it is subject to location after such failure and before resumption of work thereon, in the same manner as other unappropriated domain, and is subject to be taken by the owners of a junior location by the filing of an additional certificate under the statute.</p> <p>3. Mining Claims — Additional Certificate.</p> <p>The statute having provided that an additional certificate of location may be filed for certain purposes, such certificate, if made under proper conditions, is effectual for all purposes enumerated in the act, whether mentioned or not.</p> <p>4. Burden of Proof — Forfeiture.</p> <p>The burden of proving a forfeiture is upon him who asserts it.</p>