Volume 19 — Colorado Reports

Action to recover for services as an attorney at law. Judgment for plaintiff. Defendant brings the cause to this court by writ of error.

Action for the conversion.of personal property. Answer denying each and every allegation of the complaint. Verdict and judgment in favor of plaintiff. Defendant appeals.

Appeal from the District Court of La Plata County. Action for the conversion of personal property. Verdict and judgment in favor of plaintiff. Defendant appeals.

On the 14th day of October, A. D. 1887, the defendant in error filed his bill of complaint for divorce in the county court of Arapahoe county. In this complaint among other charges it is alleged that plaintiff in error at the time of her marriáge with the defendant in error had a husband living, and that since the solemnization of such marriage contract she had been guilty of repeated acts of adultery.

<p>1. Pabtbebship — Notice.</p> <p>Notice to one partner is notice to all.</p> <p>2. Same.</p> <p>A firm purchasing a promissory note from one of its members, wlio procured it by fraud, must be held to have had knowledge of its fraudulent character.</p>

The provision of the code referred to in the opinion is as follows: “Sec. 388.

Preliminary injunction granted. Upon final healing judgment rendered dissolving the injunction and dismissing plaintiff’s application. Plaintiff appeals.

This suit was brought by defendant in error to recover damages for the destruction of his wagon and the killing of his horses by being struck by an engine of a passenger train belonging to plaintiff in error while coming east on the Kansas Pacific Railroad, at a point at or about the intersection of Market and 44th streets, in Denver. A judgment was recovered in the district court of Arapahoe county for the value of the team and wagon.

This action is brought by Edward Nuuey to recover from the plaintiff in error for personal injuries. His claim is based upon the same facts shown in case No. 2730, The Q. R. I. xf- Pac. Ry. Co. v. Crisman, ante p. 30.

Charles A. Hinckley, as plaintiff, brought this action to recover certain commissions upon the sale of mining property belonging to appellants, Erastus F. Hallack et al. In the complaint appellants’ ownership of the property is averred, and plaintiff’s employment as a mining broker pleaded.

Action by The Home Insurance Company and others, plaintiffs, against The Atchison, Topeka & Santa Fe Railroad Company, defendant.

Original Proceeding. The opinion was rendered in response to the following communication from the governor: “EXECUTIVE DEPARTMENT — STATE OE COLORADO. “ Sept. 19, 1893 “To the Honorable Supreme Court of the State of Colorado. “ Whereas: Difference of opinion exists in the executive department as to the matters hereinafter stated, and “ Whereas: Great doubt exists as to the proper duties of the governor, auditor and other officers of said department in the premises, and “…

Original Proceeding. The opinion of the court was rendered in response to interrogatories submitted by Lieutenant Governor Nichols, as acting governor.

JOrror to the County Court of Kit Car non County. Action for damages occasioned, as it is claimed, by fires set out bjr locomotive of plaintiff in error. The action was instituted before a justice of the peace. The trial before the justice resulted in a judgment for plaintiff. Afterwards upon appeal to the county court plaintiff again recovered judgment ; this time for $80.00. The railway company brings the case here by writ of error.

Hans P. Loft, as administrator of Alexander Hansen, was plaintiff below, and Erastus F. Hallack was defendant. The pleadings upon which the cause was tried, so far as the same are necessary to an understanding of the opinion, are in substance as follows: COMPLAINT.

Action in the district court for the usurpation of the office of road overseer. Trial and judgment in favor of defendant-dismissing the action. Relator sues out writ of error from this court to review the judgment. The following section of the act creating the court of appeals is referred to in the opinion: “ Section 1.

Action by the assignee of a promissory note against an indorser ; other matters stated in the complaint are also relied on to sustain the action. The pleadings, so far as the same are necessary to an .understanding of the opinion, are as follows: complaint.

Appeal-from the District Court of Car field County. This was a proceeding in intervention to determine the right to certain real estate. Verdict and judgment in favor of appellee, petitioner in intervention.

JSrror to the County Court of Arapahoe County. Special proceeding in the county court under the act of April 11, 1893, providing for the annexation of contiguous towns and cities. See Session Laws of that year, p. 451.

Action to declare and enforcq a trust. On the 5th day of January, A. D. 1892, the Board of County Commissioners of La Plata county instituted this action against T. J. McClure, D. L. Sheets and John P. Cos-ton, administrators of the estate of John Reid, deceased, to subject the assets that came into their hands as such administrators to the payment of a balance due to the county from their intestate, as county treasurer.

jError to the District Court of Arapahoe County. Action for injunctive relief to prevent the flooding of plaintiff’s property by water from defendants’ reservoir. In the district court a temporary restraining order was granted, which, after several unsuccessful attempts at dissolution was, upon final hearing, dissolved, the defendants, in the meantime, having reinforced the banks of their reservoir so as to prevent seepage therefrom.

<p>Original Proceeding — Application for Habeas Corpus.</p>

For the first cause of action defendants in error as plaintiffs below allege, that on. January 28, 1882, plaintiff and others were the owners of certain Roaring Fork Improvement Company bonds, and that said parties entered into a written agreement wfith Isaac Cooper with reference thereto, setting forth the instrument in liceo verla.

On the 30th day of March, 1889, Gray Brothers & Company instituted this action in the district court of Arapahoe county to recover from the E. F. Hallack Lumber & Manufacturing Company, a duly organized corporation, damages for the conversion of certain collateral security.

Action against a railroad company for constructing and operating its road through lands claimed by plaintiff. Verdict and judgment for plai2itiff. Defendant appeals. The following provisions of the act of congress of March 8, 1875, are considered in the opinion (see Supplement to Rev. Stat. U. S., vol. 1, 2d ed., pp. 91, 92) : “ An act granting to railroads the right of way1 through the public lands of the United States. “ Sec. 1.

Action upon promissory note for the recovery of money only. Defendant by a counterclaim defeated the action and recovered judgment against plaintiff for the sum of $45.76. Plaintiff brings this appeal.

Action by grantors of certain real estate against the grantee, asking for a reconveyance and other relief. Findings and judgment in favor of plaintiffs. Defendant appeals. STATEMENT OE CASE. Appellees John Calnan and his wife Johanna, Benjamin B. Hill and Charles H. Leonard were plaintiffs below; appellant William E. Johnson was defendant.

JError to the County Court of Arapahoe County. Action for violation of city ordinance. On the trial judgment was rendered as follows: “That said defendant be fined in the sum of ten dollars and costs, and in default of the payment of the same that the said defendant be imprisoned in the city jail of the city of Denver, until said fine is fully satisfied, not to exceed five days.” Defendant brings the cause to this court by writ of error.

JError to the District Court of Arapahoe County. Action under the code for the usurpation of the office of police commissioner of the city of Denver. Judgment for relator Phelps. Trimble brings the case to this court upon writ of error. On the 4th day of April, 1893, George H. Phelps was nominated, and by and with the advice and consent of the senate, appointed by the governor to the office of police commissioner of the city of Denver.

This case was submitted without suit upon the following agreed statement of facts : The defendant John Wilson was, during the time hereinafter stated, and is now, the duly appointed and acting clerk of the district court of Fremont county, Colorado, and the defendants, S. W. Humphrey, C. S. Topping, and J. H. Harrison, are the sureties on his official bond as such clerk, a true copy of which with the indorsements thereon is herewith attached. “ 2.

In the years 1881 and 1882 the Bank of Leadville, an incorporation, was doing a general banking business in the city of Leadville, and a copartnership, composed, as it is claimed, of the defendant in error, Langhorne, E. L. Campbell, George R. Fisher and J. B. Bissell, were transacting a general banking business at the town of Independence, Colorado, under the firm name of the Bank of Pitkin County.

This suit was instituted on the 2d day of August, 1888, in the district court of Arapahoe county, to enjoin the plaintiff in error A. H. Weber, as sheriff, from selling six thousand shares of the capital stock of the Marrs Consolidated Mining-Company, theretofore attached by him as the property of George W. Middleton, and about to be sold under executions issued on judgments recovered by his coplaintiffs in error against the firm of Marrs, Middleton & Hunter.

<p> Appeal from the District Court of Boulder County. </p> <p>Action to. set aside decree for fraud.</p>

Action for injuries to horses while in transit from Kansas City to Denver, over defendant’s railroad. Judgment for plaintiffs for $500. Defendant appeals.

Action of claim and delivery of personal property. Charles B. Seeleman, plaintiff, alleges that on the 17th day of August, 1889, he was the owner, and entitled to the possession of certain goods and chattels of the value of $1,500; that on that day the defendant wrongfully took them from his possession.

Action by an incorporated water company to enjoin the mayor and trustees of an incorporated town from passing any resolution or ordinance in conflict with a certain contract between the plaintiff and said municipality. A preliminary injunction was granted as prayed for, and on final hearing the same was continued during the existence of said contract. The defendants appeal.

This action is brought to recover a balance of $1,500 alleged to be due for lumber sold and delivered by appellee to appellant between the first day of November, 1887, and the first day of September, 1888. The defendant answering, admits that between the dates mentioned the plaintiff sold and delivered to defendant the lumber mentioned, and pleads payment.

The plaintiff below, appellant here, alleges, among other things in her complaint, that she “is the equitable owner and in possession ” of a certain piece of land situated in the northwest quarter of… Held: with corrected descriptions so as to avoid the original conflicts.

Indictment and conviction for an assault with intent to commit the crime of rape. The defendant brings the cause to this court by writ of error.

Plaintiee in error was convicted of murder of the first degree, and sentenced accordingly. He is charged in the first and second counts of the indictment with the murder of Andrew Peterson, and in the third with the murder of Neis O. Anderson, and was found guilty upon both the first and third counts.

Action for stone and rock sold and delivered, and for work and labor done. Findings and judgment for plaintiff. Defendants appeal. Plaintiff also assigns cross-errors.

Appeal from the District Court of Lake County. Action for logs sold and delivered. Finding and judgment for plaintiffs. Defendant appeals.

<p>Stock Killing Statute.</p> <p>The decision, of the court follows the doctrine announced in Wadsworth v. U. P. By. Co., 18 Colo. 600.</p>

This action is brought to recover damages for personal injuries. The substantial averments of the complaint are that on the 27th day of August, 1889, and long prior thereto, plaintiff was engaged in the business of cleaning the outside walls of brick buildings in Denver. That defendant employed plaintiff as a common laborer in plaintiff’s said business, and to work for him in cleaning the outside walls of a certain building.

<p>1. Stbeets — Unlawful Obstbuctions.</p> <p>The unlawful obstruction of a public street more or less remote from abutting property entitles the owner of such property to a recovery therefor if it causes a special injury thereto, but not if the inconvenience is such as is shared by the public generally.</p> <p>2. Same — Limitations.</p> <p>In an action by the owner of abutting property for permanent damages occasioned by the construction and operation of a railroad through a public street in an ordinary and lawful manner, the damages are the diminution in the market value of the property for any reasonable use to which it may be put, and the statute of limitations begins to run from the time the railroad company first occupied the street for such purposes; but in cases where the action is for the use of the street by the railway company in an improper manner, the cause of action, if any exists in favor of a private party, may arise daily so long as the nuisance continues.</p>

During the lifetime of Isaac Cooper he became interested in the Roaring Fork Improvement Company with W. Henry Sutton, defendant in error, and likewise with one Bradley in the Pearl Mining Company. Both corporations were stocked and bonded, and their certificates and bonds were dealt in by the parties. While Cooper was living he received from Sutton various sums of money for which Sutton claims he died indebted. The advances amount to $16,750.

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

Action to remove cloud from title to real estate by cancellation of fraudulent deed. Plaintiff Wilson obtained judgment below. Defendant Mulock brings this appeal. THE COMPLAINT.

Action for attorneys’ fees. Judgment for defendant. Plaintiffs appeal. In March, 1887, Governor William Gilpin brought suit against his wife, Julia P. Gilpin, for the purpose of dissolving the marriage relation then existing between the parties.

Action upon contract. Judgment for plaintiff. Defendant appeals. The contest in this case is over $7.73. The controversy arose as follows; — In the year 1889, the appellee, The Beck and Pauli Lithographing Company, entered into a contract with appellant Kindel, by the terms of which appellee agreed to furnish appellant five thousand calendars at 17J cents each, or for a total of $875.

On the 6th day of November, 1889, appellee instituted this action in the district court of Arapahoe county to enforce an alleged liability against the appellants upon an undertaking on appeal.

<p>1. Subsequent Puechasebs — Notice—Bubden of Pboof.</p> <p>As between one claiming record title and one claiming under a prior equity or unrecorded instrument, the burden of proof is on the latter to show actual notice to the subsequent purchaser of his rights or prove such circumstances as would put a prudent man upon his guard and from which actual notice may be inferred.</p> <p>2. Public Lands — Illegal Contbacts — Notice.</p> <p>An option for the purchase of a homestead and a pre-emption claim executed before final entry is in contravention of the acts of Congress and not enforceable. Notice of such an option is not sufficient to put a purchaser after entry upon inquiry, as he has the right to assume that no attempt will be made to consummate the fraud by procuring title thereunder.</p>

Action for violation of city ordinance. Defendant, having been adjudged to pay a fine of $105 and costs, brings his appeal to this court. FROM CHARTER OF CITY OF DENVER. “ The city council shall have power by ordinance: ******** “ Twelfth.

This action is brought under the act of March 31, Session Laws of 1887, page 368, to recover damages resulting from fires alleged to have been caused by appellant in operating its railroad. Plaintiff below recovered a judgment from which the railway company prosecutes this appeal.

Original Proceeding. The opinion of the court is in response to certain questions propounded by the house of representatives as hereinafter stated. The governor of Colorado by proclamation convened the Ninth General Assembly in special session on January 10, 1894. The proclamation is based upon the following provision of the constitution: ABTICLE IV. “Sec. 9.

Action for the conversion of personal property. AMENDED SECTION 34 OF CODE. “ The summons shall state the parties to the action, the state, county and court in which it is brought, and require the defendant to appear and answer the complaint within twenty days after the service of the summons, if served in the county in which the action is brought; or if served out of such county or by publication, within thirty days after the service of the summons, exclusive of the day of…

Original Application for a Writ of Oertiórari and Prohibition. Petitioner was adjudged guilty of contempt in the court below and sentenced to pay a fine of $25.00, and costs, and to stand committed until the same should be fully paid. After-wards the execution of this sentence was stayed for a brief period, and this application presented.

It is unnecessary to repeat in detail the facts alleged in the complaint as a first cause of action, as the same are fully set out in connection with a former appeal, and will be found in Bayles v. Kansas Pacific Railway Company, 13 Colo. 181. It is sufficient for the purposes of this appeal to state that the suit is brought to recover certain rebates agreed to be paid the plaintiff upon freight charges paid to the railroad company.

Original Proceeding. The opinion of the court was delivered in response to the following resolution and interrogatory:— “Whereas, House Bill No. 26 having passed the House, as the same is hereto attached and was transmitted to the Senate, and “ Whereas, the same was considered and amended by the Senate and passed as hereto attached, “ Therefore, be it resolved by the House of Representatives that the opinion of the Honorable Supreme Court be requested on the following…

Mandamus proceedings against the auditor of state to compel the issuance of warrants for the salary of the inspector of metalliferous mines. Judgment in the district court for petitioner. The state constitution provides that there shall be established and maintained, the office of Commissioner of Mines.

This is an action to recover damages for an alleged trespass. The appellee, on and prior to the first day of August, 1887, was the owner of an irrigating ditch taken out of the south side of the Las Animas river. It was about fifteen miles in length, fifteen feet wide at the top and twelve feet wide at the bottom, and carried water to the depth of two feet, and was used in irrigating a large area of land, and was of the alleged value of $30,000.

Action for the recovery of real property and damages for its detention. Judgment in favor of plaintiff for possession and $2,700 damages. Defendant appeals.

Action for the recovery of real property and damages for its detention. Judgment in favor of plaintiff. Defendant appeals.

Petition for writ of mandamus to compel respondent as justice of the peace to enter judgment in accordance with the verdict rendered in a certain proceeding before said justice. The district court denied the writ. Petitioners seek a reversal of the district court judgment by writ of error from this court.

Frror to the District Court of Costilla County. On and prior to the 10th day of May, 1889, the estate of William B.. Clancy, deceased, was in process of administration in the county court of Costilla county, and on that date plaintiff in error, The Mortgage Trust Company of Pennsylvania, filed a claim in due form against the estate. A hearing upon this claim resulted in its disallowance by the court.

Jfirror to the County Court of Arapahoe County. Metta S. Newell, the plaintiff below, as the sole heir of Henry Sparnick, deceased, instituted this action in the county court of Arapahoe county to recover from James M. Swem and J. T. Younker, the defendants below, upon a certain promissory note.

This action was commenced before a justice of the peace in Pueblo county, to recover the sum of $150 commission for the sale of certain real estate in the city of Pueblo. It was appealed to the county court and tried to the court without formal pleadings, and judgment rendered for defendants.

This is an action brought by H. E. Foster against Fred Cramer, sheriff of Arapahoe county, and the Solis Cigar Company, to recover possession of certain personal property. The case was tried to the court and judgment rendered for defendants. Plaintiff brings the case here on appeal.

Original Proceeding. The opinion of the court is in response to the following communication and question from the governor: “ To the Honorable, the Supreme Court of the State of Colorado. “ Sirs: A question of serious import has arisen in the executive department of the state, upon the following facts : “ The seventh general assembly, April 19, 1889, passed an act to establish the Colorado State Reformatory, which was afterwards established at Buena Vista. “ The question of…

Action to restrain the Board of County Commissioners of Weld County from opening and maintaining a road as a public highway through the lands of plaintiff. A temporary injunction was granted. On final hearing upon the pleadings and evidence, the finding of the court was in favor of defendant, and judgment was rendered dissolving the injunction and dismissing the action. Plaintiff appeals.

Plaintiff in error was proceeded against in the court below by information. He was convicted of murder in the first degree and sentenced accordingly.

JError to the District Court of Arapahoe County. Action for the recovery of real property and damages for its detention. Judgment for defendant. Plaintiff brings the cause to this court by writ of error. SYNOPSIS OF THE PLEADINGS. Complaint as in an ordinary action of ejectment, plaintiff claiming title in fee to lots 5 and .6 in block 125, East Division of the city of Denver, Arapahoe county, Colorado.

<p>1. Evidence in Criminal Cases.</p> <p>Oral declarations of a party accused of a crime in respect to matters relevant to tlie issue, when voluntarily made, are always competent evidence against him. They are allowed to be proved, and their falsity to be shown by other evidence. Such admissions contained in an affidavit by the accused fall within the rule.</p> <p>2. Practice in Criminal Cases.</p> <p>The conduct of the district attorney in his argument to the jury, even if improper, cannot be made available to reverse a judgment, unless such conduct was objected to at the time.</p> <p>3. Practice — Impeaching Evidence.</p> <p>It is not error to refuse to admit evidence, the only tendency of which would be to impeach a witness upon an immaterial matter.</p>

Upon information filed by the district attorney, William Nesbit, defendant below, was convicted of murder of the first degree and sentenced accordingly. He brings the cause to this court by writ of error. STATEMENT. Defendant was a man upwards of fifty years of age. Mrs. Irwin, the deceased, was about forty-eight. Both were residents of the city of Denver. Mrs. Irwin lived at 2404 Larimer street, and with her sister, Miss Kate Swift, kept boarders.

This is an action upon an appeal bond given on appeal from a justice of the peace to the county court. The appeal was dismissed upon appellant’s failure to pay the docket fee in the county court within twenty days after the approval of the bond, as required by the act of 1887, page 325. The action is brought against fourteen principals in the bond, and the appellant Lux as surety.

Error to the District Court of Arapahoe County. Indictment and conviction for the crime of perjury. Defendant Dili brings the cause to this court by writ of error.

The Opinion of the Court is in Response to the Following Communication from the G-overnor. “ Whereas, by the terms of section 8 of art. 5 of the Constitution of the state of Colorado, it is provided, among other things, as follows: “ The supreme court shall give its opinion upon important questions upon solemn occasions when required by the governor ; and “ Whereas, in consideration of the facts hereinafter set forth and alleged, the present time and condition of affairs as…

Action by appellee, plaintiff below, for the enticing away of his wife. Judgment for plaintiff for §25,000. Defendant appeals.

On December 15, 1890, the appellee instituted this action against the appellants, the surviving heirs of John W. Iliff, deceased, to declare a trust.

This is an action to recover a balance of an account for services rendered. The plaintiffs, as partners, allege that from the 15th day of April, 1888, to the 12th day of June, 1889, they performed labor, at the request of defendant, in hauling logs, lumber, etc., and in moving a mill and boiler and in working in and about the sawmill of defendant to the amount of $2,797.08.

Action by appellees as plaintiffs, to recover money advanced to appellant upon certain consignments of wool. Verdict and judgment for plaintiffs. Defendant appeals.

This is an action to recover a balance of $1,525 alleged to be due upon a building contract. The contract is set out in Tubo verba in the complaint. It provides for the erection and completion of eight houses according to certain plans and specifications, at and for an agreed price, amounting in the aggregate to the sum of $21,200.

Lrror to the District Court of Larimer County. Action for attorney’s fees. Judgment for plaintiff Love. Defendant brings error. Two causes of action are stated in the complaint. In the first an indebtedness of $424.66 is claimed on the part of the plaintiff for services alleged to have been rendered by the plaintiff as an attorney to the defendant between the first day of June, 1883, and the first day of October, 1884, at the latter’s special instance and request.

Action to set aside administrator’s sale and for other relief. . Judgment for defendant upon demurrer to the complaint. Plaintiff brings error.

Action for the violation of city ordinance. Judgment in favor of defendant Smith. The city brings the cause to this court by writ of error. ORDINANCE. “Section 1.

Action for damages for the destruction and conversion of personal property and for penalties under the statute. The causes of action in plaintiff’s complaint are of four kinds; the first five counts allege in substance that the defendant company negligently ran its locomotive and cars against and over, and thereby killed, seven certain American steers of plaintiff of the alleged value of $85.00 each, and then and there converted said steers to the use of defendant.

Original Proceedings in this Court by Quo Warranto. The above entitled cases are considered together in the opinion; they were argued and submitted together, the pleadings being substantially the same except as to the names of the parties and offices.

This is an action instituted by defendants in error to enjoin the city of Pueblo, its officers and agents, from entering upon and opening up a street over a certain lot of land itt the city of Pueblo. The case is brought before us upon the complaint, answer, and demurrer to the answer.

Original Application for Writ -of Mandamus. When the writ of mandamus was applied for in this case there was pending in the district court of Weld county a certain proceeding to adjudicate the priorities of right to the' use of water in Irrigation District No. 1.