Volume 19 — Colorado Court of Appeals Reports

<p>1. Appellate Practice — Exception to Judgment — Bill of Exceptions. °</p> <p>The sufficiency of the evidence to support a decree of foreclosure will-not be considered on appeal unless an exception to the decree be preserved by bill of exceptions. A recital in the order allowing an appeal that an exception was taken to the decree does not make the exception part of the record.</p> <p>2. Practice — Evidence—Narrative Form.</p> <p>On an issue as to when certain erasures were made in a contract, it was not erroneous to permit plaintiff’s only attorney at the trial, • and who represented plaintiff in the execution of the contract, to be sworn and testify in a narrative form without questions first having been propounded to - him that when’ he signed plaintiff’s name to the contract he looked it over carefully and no erasure had been made.</p>

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

<p>1. Water Rights — Abandonment.</p> <p>An abandonment of a water right occurs when the party in possession of such right deserts it without any intention to reclaim it, and such intention is not shown by mere nonuser or failure to maintain it. A failure by owners of water rights to contribute towards repairs upon the ditch,, and the fact that such owners for several years did not use their full share of water and one year used none, would not alone prove abandonment.</p> <p>2. Water Rights — Appropriation.</p> <p>'Where several parties were the owners of the shares of the capital stock of a ditch company which they acquired from the company, the original appropriator of- the water rights of the ditch, and the shareholders, were entitled to a proportionate share of the water flowing in the ditch, the fact that one of the shareholders for several years contributed more than his share towards maintaining the ditch and appropriated therefrom more than his proportional share of the water was not such prior appropriation of the water as would give him a prior right to the water over other shareholders.</p>

<p>Appellate Practice — Reversal—New Trial.</p> <p>Where a cause is reversed by the appellate court and remanded without any specific directions to the trial court, the appellee or defendant in error is entitled as a matter of right to a new trial, and it is reversible error to deny him a new trial.</p>

<p>•Elections — City and County of Denver — Charter Convention— Canvass of Vote.</p> <p>Under the amendment to the constitution creating the city and county of Denver and providing for the election of members of a' charter convention it- is the duty of the clerk of said city and county, assisted by two justices of the peace, and not of the city council, to canvass the returns of an election for members of such charter convention, and to issue certificates of election to the members elected thereto.</p>

<p>1. Appellate Practice — Motion to Dismiss Appeal.</p> <p>A motion to dismiss an appeal on the ground that'the judgment is not appealable should be passed on at once and not postponed until the case is heard on its merits where the court has before it information upon which to determine the motion.</p> <p>2. Appellate Practice — Appealable Judgment.</p> <p>, A judgment in favor of the party seeking to have it reviewed cannot be reviewed on appeal, although such party may not have recovered judgment for all he asked. A money judgment in favor of the party seeking to have it reviewed, but which denied the judgment the rank claimed for it as a lien on property, is not reviewable on appeal, but must be-reviewed, if at all, by writ of error.</p>

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

<p>1. Negligence — Evidence.</p> <p>Defendant piped plaintiff’s house for gas, and one month after the pipe was laid gas was turned on and a plug being out of the end of one of the service pipes gas escaped into the room, an explosion occurred and damaged plaintiff’s house. There was no evidence that the pipe had ever been disturbed at the point where the plug should have been after it was laid by defendant. Held, that the evidence was sufficient to sustain a verdict that defendant failed to plug the pipe, although its employees who did the work testified that the pipe was plugged.</p> <p>2. Instructions — Not Applicable — Evidence.</p> <p>An instruction should not be given where there is no evidence to which it is applicable.</p> <p>3. Instructions — Requested—Objections.</p> <p>Where an instruction was given substantially as requested, the person requesting it is not in position to question it.</p> <p>4. Instructions — Negligence.</p> <p>In an action against a gas company, who piped plaintiff’s house, for damage occasioned by° an explosion of gas which escaped because of a missing plug from the end of -a service pipe, a requested instruction by defendant to the effect that it was not sufficient to warrant a finding that defendant had failed to properly plug the pipe, to show that at the time of the explosion the' plug was missing, if plaintiff, without the knowledge of defendant, had in the meantime made or caused to be made, any changes in the pipes, was properly modified by the court by adding after the word pipes, the limitation, “which in any way contribute to the injury complained of.”</p> <p>5. Evidence — Cross-Examination—Occupation of Witness.</p> <p>On cross-examination it is proper to ask questions as to witness’s occupation.</p>

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

<p>1. Practice — Appearance.</p> <p>Where counsel for defendant in an action, at the time of presenting and arguing a motion in court chambers to discharge a receiver, handed to counsel for plaintiff a copy of an answer in the cause, and stated that the original would be filed, and availed himself of the answer in presenting the motion to discharge the receiver, it constituted a general appearance by defendant whether or not the original answer was filed.</p> <p>2. Chattel Mortgages — Receivers—Notice—Lis Pendens.</p> <p>Where a chattel mortgage was executed pending an action against the mortgagor for the appointment of a receiver, evidence that prior to the execution of the' chattel mortgage counsel for mortgagee was present representing mortgagee at the hearing of a motion to discharge the receiver, and that other counsel for mortgagee prepared the resolution adopted by the board of directors of the mortgagor, a corporation, authorizing the execution of the chattel mortgage and recited in said resolution the appointment of the receiver, was sufficient to show actual knowledge on the part of the mortgagee of the p'endency of the suit against the mortgagor.</p> <p>3. Pleading — Demand for Relief — Jurisdiction.</p> <p>Where a complaint was filed alleging facts which would entitle plaintiff to a money judgment, it was sufficient to give the court jurisdiction of the subject-matter notwithstanding the complaint contained no demand or prayer for judgment.</p> <p>4. Lis Pendens — Personal Property.</p> <p>The doctrine of lis pendens applies to all personal property except negotiable instruments transferred before maturity and articles of ordinary commerce sold in the usual way, where the purchaser has no notice of the pendency of the suit.</p> <p>5. Same.</p> <p>While the doctrine of lis pendens has been modified and relaxed as to real estate by section 36 Mills’ Ann. Code, as to personal property, it remains as at common law.</p> <p>6. Receivers — Jurisdiction—Judgments—Collateral Attack.</p> <p>Where a receiver was appointed in an action in which the court had jurisdiction of the parties and subject-matter, the judgment of the .court appointing the receiver cannot be questioned in a collateral ■ proceeding.</p> <p>7. Receivers — Chattel Mortgages — Lis Pendens.</p> <p>Pending an action for the recovery of a debt and asking for the appointment of a receiver to take charge of all of defendant’s assets, defendant executed a chattel mortgage covering practically all of its assets, the mortgagee having actual knowledge of the pendency of the suit. After the execution of the chattel mortgage the receiver was appointed, as prayed for in the action. Held, that the order appointing the receiver related back to the time the court acquired jurisdiction of the subject-matter and parties, and took precedence over the chattel mortgage, and the receiver was entitled to recover possession of said assets from the mortgagee.</p>

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

<p>1. Contracts — Oil Lease — Forfeiture—State Land Board.</p> <p>The state board of land commissioners executed a lease to certain state land giving the lessee the exclusive right to mine for oil and gas for a term of twenty years. The lessee agreed to give to the state a certain per cent, of the oil and gas produced, and obligated itself to begin boring within two months, and to bore two wells of an agreed depth within eighteen months unless oil was sooner found in paying quantities. In case the two wells were sunk as agreed and proved nonproductive, the lessee agreed to pay to the state $50.00 per annum as a rental forfeiture to continue until such time as the drilling of the new well or wells should he commenced, and the failure to pay such forfeiture to render the lease null and void. The lessee at once began work and the first year sank three wells the required depth, and the next year sank a fourth with the result that oil was found ifi small quantities in one well, but all of them proved nonpaying. A little more than two years from the date of the lease, lessee drew the casing from the wells and abandoned them, and for four years did nothing more towards searching for oil. Held that the lessee by abandoning its search for oil and failing to prosecute the same with diligence, had forfeited its rights under the lease and the land board had a right, without notice to the lessee, to declare the lease forfeited and to lease the same land to another party.</p> <p>2. State Land Board — Authority of Register — Lease—Forfeiture —Estoppel.</p> <p>The register of the state board of land commissioners has no authority to bind the board by his opinion as to whether or not a lease of state land is subject to forfeiture; and where said register, in answer to an inquiry from a lessee, wrote such lessee that its lease was not subject to forfeiture, such letter did not estop the board to declare the lease forfeited.</p>

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

<p>1. Mechanics'.Liens — Material Furnished — Intention.</p> <p>A lien, cannot be maintained against the owner of a building for materials used in its construction that were furnished the contractor in his own name, when the material man had no knowledge of any contract relations existing between the contractor and owner, or of the particular building to be constructed, but intended to hold the lien upon whatever building the materials might be used in.</p> <p>2. Mechanics’ Liens — Date of Contract Fixes Legal Right.</p> <p>Where the contract under which a sub-contractor claimed a mechanic’s lien was entered into prior to the time the Mechanics’ Liens statute of 1899 went into effect, he must proceed under the law of 1893, although the building was finished and his statement filed- after the law of 1899 went into effect.</p> <p>3. Mechanics' Liens — Filing Statement Before Completion of Building.</p> <p>Under the mechanics’ lien law of 1893, a statement of claim filed by a sub-contractor before the completion of the building on which he claimed a lien, was premature and of no effect, and will not support a mechanic’s lien.</p>

<p>1. Evidence — Appellate Practice — Assignment of Error.</p> <p>Where there is no assignment of error to the rulings of the trial court on the admission of evidence and the competency of the witnesses is admitted, objections to the admission of such evidence urged in appellant’s brief will not he considered.</p> <p>2. Instructions — Evidence.</p> <p>Where the evidence was conflicting and there was sufficient competent evidence of damage before tbe jury to justify a recovery, a motion to instruct the jury to return a verdict for defendant was properly denied.</p> <p>3. Instructions — Measure of Damages — Irrigation Ditches— Overflow.</p> <p>In an action for damages for the destruction of crops by the overflow of an irrigating ditch, an instruction given that “the measure of damage is the value of the crop destroyed, taking into consideration its market value after harvested, and the cost of seeding, caring for, harvesting and marketing the crop, and the value of the crop- is measured by the amount of crop produced on like and similar lands in the neighborhood in which the land is located, taking into consideration all elements as to the probable yield of the land in controversy,” correctly stated the law, and it was not error to refuse a further instruction requested upon the measure of damage, although not objectionable as a statement of the law.</p> <p>4. Instructions — Requested.</p> <p>It is not error to refuse instructions requested when they are substantially embodied in the instructions given.</p>

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

<p>Assignment for Benefit of Creditors — Debts Discharged — New Promise — Authority of Counsel to make — Evidence.</p> <p>Evidence that plaintiff’s counsel called upon defendant, in reference to an indebtedness owed by defendant to plaintiff, but which had been discharged by an assignment for the benefit of creditors, • and that defendant declined to discuss the -matter with plaintiff’s counsel, but referred him to her own counsel, was not sufficient to show authority of defendant’s counsel, to bind defendant by a new promise to pay the debt.</p>

<p>1. Mechanics’ Liens — Foreclosure—Mortgages—Parties.</p> <p>The beneficiary in a deed of trust is not a necessary party to the foreclosure of a mechanic’s lien on the premises conveyed by the deed of trust; but where such foreclosure is had without making such beneficiary a party, his interest is not bound thereby, and he may attack the validity of such lien and foreclosure in a subsequent action.</p> <p>2. Mechanics’ Liens — City Lots — Sidewalks.</p> <p>A mechanic’s lien cannot be established against city or town lots for the construction of a sidewalk in front of the same.</p>

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

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

<p>1. Appellate Practice — Evidence—Verdict.</p> <p>An assignment of error asking for the reversal of a judgment on the ground that the verdict was contrary to the evidence, and was the result of passion and prejudice, will not be considered where the evidence was contradictory and the record discloses sufficient testimony to sustain the verdict, and there is nothing in the record to indicate that the jury was swayed in its determination by passion or prejudice.</p> <p>2. Appellate Practice — Instructions—Considered as a Whole.</p> <p>When the instructions in a case considered as a whole fairly state the law of the case, the fact that some of the instructions when considered separately and alone may be subject to objection, is not ground for reversal.</p>

<p>Appellate Practice — Transcript.</p> <p>Where on appeal none of the papers on file in what purports to be a transcript are authenticated by the clerk under the seal of the court, and there is no authenticated copy of the record of any judgment rendered by the lower, court, the ease will be stricken from the. docket.</p>

<p>1. Pleading — Denial—Admission.</p> <p>In an action for the price of an air compressor, where the complaint "sets out a contract for a certain described machine and alleges “that the said air compressor was thereafter delivered,” an answer which admits that “a combined gasoline air compressor” was delivered, while not expressly admitting the delivery of the machine described, but which failed to deny the allegation “that the said air compressor was thereafter delivered” is an admission, by failing to controvert, the material allegations of the complaint.</p> <p>2. Contracts — Parol Evidence to Contradict Written Contract.</p> <p>When the parties to an agreement have reduced it to writing, in such form as to import a valid legal obligation, complete and unambiguous in its terms, with no uncertainty as to the extent of the obligation, it is, in the absence of fraud, accident or mistake, conclusively presumed that the writing constitutes the whole engagement of the parties, and no extrinsic evidence of prior or contemporaneous negotiations between the parties is admissible to vary or qualify the written contract either in its terms or legal import.</p> <p>3. Contracts — Warranties.</p> <p>Where a written contract contains certain express warranties, no other or further warranties will be implied by law.</p> <p>4. Contracts — Warranties—Particular Purposes.</p> <p>Where a known, described and definite article is ordered of a manufacturer, and is actually supplied as ordered, there is no implied warranty that it will answer the purpose of the buyer, although it was ordered for a particular purpose.</p>

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

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

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

<p>Principal and Agent — Commission—Loans—Instructions.</p> <p>In an action by an agent for commission for procuring a person ready and willing to loan to defendant money, where it was alleged and proven that defendant employed plaintiff to procure a loan of a certain sum upon real estate and was to pay plaintiff therefor a certain sum, and that defendant agreed to furnish an abstract of title to the real estate; that plaintiff procured a person ready and willing to make the loan, and that defendant failed to furnish the abstract, and the loan through his fault was not consummated, plaintiff was entitled to recover, and where there was no conflict of testimony the court properly directed the jury to return a verdict for plaintiff.</p>

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

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

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

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

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

<p>1. Principal and Agent — Bills and Notes — Indorsement—Authority of Agent.</p> <p>Plaintiff, a mining company, was engaged in mining and shipping ore to a smelting company. The smelting company for each shipment would mail to plaintiff a check drawn upon defendant. Plaintiff’s bookkeeper, who received these checks, was authorized to indorse them in blank -and deposit them to plaintiff’s credit in plaintiff’s.bank. Defendant had no knowledge of the limitation upon the authority of the agent to indorse the checks only when deposited for plaintiff’s credit. Plaintiff’s said agent continued to indorse these checks, amounting to several thousand dollars per month, for nearly a year and a half, and during all that time the books were properly kept and upon inspection would have disclosed any discrepancy between the value of ore shipped and the amount deposited to plaintiff’s credit. Upon presentation of the checks to defendant they were paid and charged to the smelting, company. Plaintiff’s said agent indorsed and cashed a number of these checks for his own use and appropriated the money, which checks defendant also paid. Held, that defendant was not liable to plaintiff for the checks thus appropriated by plaintiff’s agent, and that the fact that such checks were indorsed by other persons in blank following the indorsement by the agent for plaintiff while the checks deposited in bank to plaintiff’s credit were indorsed only by said agent would not charge defendant with notice of the limitation upon the agent’s authority.</p> <p>2. Bank Checks — Negotiable Instruments — Indorsement—Suspicious Circumstances — Good Faith.</p> <p>A bank check is a negotiable instrument and an indorsee of such check is presumed to have received it in good faith, and it will not be invalidated in the hands of such indorsee by suspicious circumstances attending its indorsement unless the circumstances are sufficient to show that it was taken in bad faith.</p> <p>3. Appellate Practice — Findings of Fact — Nonsuit.</p> <p>Where trial is to the court, if after hearing plaintiff’s evidence it is of opinion that plaintiff has not made a case, there is no occasion to require evidence from defendant; and the court’s conclusions of fact, made upon a motion for nonsuit, are as binding upon the appellate court as if made after hearing the testimony of both sides.</p>

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

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

<p>1. Evidence — Quieting Title — Trust Deeds.</p> <p>Evidence held insufficient to sustain a finding that defendant in a suit to quiet title was the owner or holder of a certain trust deed or trust deeds on the property in controversy, or had any substantial interest in the same.</p> <p>2. Evidence — Quieting Title — Tax Deeds — Payment of Taxes.</p> <p>In an action to quiet title, where plaintiff claimed title under a tax deed, evidence held insufficient to sustain a finding that plaintiff had paid a certain sum as taxes on the property in controversy.</p>

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

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

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

<p>1. Sales — Fraud—Change of Possession — Evidence.</p> <p>Where a corporation distributed its property amongst certain of its creditors and went out of business, and its place of. business from which some of the property so distributed was not removed was turned over to a partnership firm, one member of which had been the president and manager of the corporation, and the partnership firm immediately took possession of the premises and the property therein, changed the signs on the building and paid the rent, and the corporation thereafter had no possession of the premises or the property in controversy, there was a sufficient delivery and change of possession of the property to sustain the sale as against an execution creditor of the corporation, who levied on the property about three months after its transfer, as the property of the corporation.</p> <p>2. Sales — Consideration—Pre-existing Debt.</p> <p>A pre-existing debt is a sufficient consideration to sustain the plea of a bona fide purchaser for value.</p> <p>3. Corporations — Sales—Preference of Creditors.</p> <p>• An insolvent corporation has the same power to prefer its creditors that a natural person has.</p> <p>4. Corporations — Preference of Creditors — Authority of Presi- • dent and Manager.</p> <p>Where the assets of a corporation were distributed amongst certain of its creditors by the president and general manager of the corporation, the authority of the manager to make such distribution cannot be questioned by other creditors of the corporation, but such authority can only be questioned by the directors and stockholders of the corporation.</p>

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

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

<p>Indigent Defendants — Attorneys’ Fees — Murder.</p> <p>Under section 1026 Mills’ Ann. Stats., fixing the maximuni compensation to be paid by the county to an attorney appointed by the court to defend an indigent defendant charged with r, felony, the punishment for which is confinement in the penitentiary, at thirty dollars, after the abolishment of capital punishment for murder an attorney appointed to defend an indigent defendant charged with murder could only be allowed thirty dollars for his services.</p>

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

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

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

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

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

<p>1. Mechanics’ Liens — Contracts—Power to Prescribe Conditions.</p> <p>The power to enact a mechanics’ lien law includes the power to prescribe the conditions upon which the lien may be acquired, and with reference -to which the rights of persons interested shall be determined.</p> <p>'2. Mechanics’ Liens — Constitutionality—Freedom of Contract.</p> <p>The provisions of the mechanics’ lien law of 1893 (Session Laws 1893, chapter 117), prescribing the form of contract which must be entered into and recorded by the owner and contractor to enable the contractor to secure a lien for himself, and the owner to confine the liabilities to which his property may be subjected to the contract price, do not interfere with the constitutional right of the citizen to contract as his interest may demand, - and are not repugnant to the provisions of the constitution guaranteeing to citizens the right of acquiring, possessing and protecting property, inhibiting the enactment of laws impairing the obligation of contracts or depriving any person of life, liberty or property without due process of law.</p> <p>3. Same.</p> <p>The provision of-the mechanics’ lien law (Session Laws 1893, chapter 117), which gives to persons furnishing material or performing labor for the principal contractor a lien against the property of the owner for the full value of their material or labor, regardless of the contract price, if the owner disregards the provisions of the statute with reference to the contract, does not interfere with' any of his constitutional rights, nor subject him to a penalty for exercising such rights.</p> <p>4. Mechanics' Liens — Validity of Law — Principal and Agent.</p> <p>The fact that the mechanics’ lien law (Session Laws 1893, chapter 117) makes the contractor the agent of the owner for the purpose of the act, does not invalidate the statute.</p> <p>5. Mechanics’ Liens — Contracts—Notice.</p> <p>The contract required by the mechanics’ lien, law (Session Laws 1893, chapter 117) to be recorded in order to limit the amount of the liens to which the owner’s property is subject to the amount of the contract price, is a contract the terms of which are contained in the statute, and if the contract varies from the statutory contract in any material particular, it would not affect the rights of lien claimants, and it is immaterial whether or not they had knowledge of it.</p> <p>6. Mechanics’ Liens — Constitutionality—Title of Act.</p> <p>The title of the mechanics’ lien act (Session Laws 1893, chapter 117), which is “An act to secure liens to mechanics and others,” is sufficient to embrace the provisions granting liens to other persons than mechanics, and the act contains but one subject.</p> <p>7. Mechanics’ Liens — Construction of Statute.</p> <p>The mechanics’ lien statute should be liberally construed so as to advance its object.</p> <p>8. Same — Statement of Claim — Contracts.</p> <p>That provision of the mechanics’ lien statute (Session Laws 1893, chapter 117) which requires the lien claimant to incorporate the terms and conditions of his contract into his lien statement, must be construed as having reference only to the principal contractor and not to sub-contractors, material men and laborers.</p> <p>9. Mechanics' Liens — Statements—Evidence—Variance.</p> <p>In the enforcement of a mechanic’s lien a small discrepancy between the statement in the lien claim and the evidence as to tlie amount due, which was purely the result of mistake and did not mislead or injure anyone, would not affect the standing of the lien.</p>

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

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

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

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

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

<p>1. Pleading — Immaterial Allegation — Striking Out.</p> <p>In an action upon a contract for labor performed and to foreclose a mechanic’s lien, an allegation in the answer that plaintiff , was out of employment and claimed to be owing certain sums for taxes and interest which he was unable to pay, was properly stricken out.</p> <p>2. Same — Mechanics’ Liens.</p> <p>In an action to enforce a mechanic’s lien for labor” performed upon a mining claim, under a contract to work as a common laborer and as a stone mason and bricklayer, an allegation in the answer that plaintiff was wholly unacquainted with and unused to mining and was not a miner, was immaterial and was properly-stricken out.</p> <p>3. Pleading — Repetition—Striking Out.</p> <p>It is not error to strike out of an answer an allegation which is a mere repetition in substance of an allegation which appears elsewhere in the answer.</p> <p>4. Evidence — Competency—Conversation with Other Witness.</p> <p>It is competent on cross-examination to question a witness whether he has conversed with anyone about the facts which he has testified to, for the purpose of determining whether he testifies from his own recollection or from the promptings of another; but it is improper to ask such witness whether he has conversed with another witness about what such other witness would testify to. 1</p> <p>5. ' Evidence — Striking Out — Error Cured.</p> <p>Error committed in striking out testimony is cured by subsequently admitting the same testimony.</p>

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

<p>1. Pleading — Practice—Motion to Make More Certain.</p> <p>A motion to make a complaint more specific does not present an issue of law. Such motion may be disposed of by stipulation of parties without an order of court ruling thereon.</p> <p>2. Practice — Setting Cause for Trial — Notice—Waiver.</p> <p>Where defendant’s counsel were present at the time a cause was set for trial and made no objection to the setting of the case, all irregularities in the notice of such setting and the service thereof were waived.</p> <p>3. Practice — Jury—Waiver—Failure to Appear.</p> <p>By failing to appear at the time a cause is set for trial, a • party waives his right of trial by jury.</p> <p>4. Appellate Practice — Bills of Exception — Evidence.</p> <p>Objections to a judgment predicated on the evidence will not be considered by the appellate court where no evidence is preserved in the bill of exceptions.</p>

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

<p>Appellate Practice — Appealable Judgments.</p> <p>In an action upon a promissory note and to foreclose a trust deed, where personal judgment was rendered in favor of plaintiff upon the note, but the foreclosure was denied, it was a judgment in plaintiff’s favor, from which no appeal by plaintiff will lie. But the cause having been brought up by appeal will be dismissed and redocketed on error.</p>

<p>1. Bills and Notes — Indorsements—Presumptions—Mortgages.</p> <p>In the absence of evidence to the contrary, an undated indorsement of a promissory note is presumed to have been made at the time and place of the execution of the note; and in an action on the note and to foreclose a deed of trust given to secure it, this presumption obtains against the maker of the note, the maker of the deed of trust arid also against subsequent purchasers of the property covered by the deed of trust.</p> <p>2. Same — Evidence.</p> <p>In an action by the indorsee of a promissory note for personal judgment against the maker and to foreclose a deed of trust given to secure it, the introduction in evidence of the note with an undated indorsement by the payee, presumptively established the nonpayment of the note and its assignment to plaintiff at the time of its execution; and the introduction of the trust deed presumptively established that it had not been released.</p> <p>3. Mortgages — Release—Foreclosure—Evidence.</p> <p>In an action to foreclose a deed of trust, a release deed from the trustee together with evidence that the amount of the note secured was paid to the trustee prior to the maturity of the note, was not sufficient to constitute a defense, but defendant must also show that the trustee was authorized to receive payment of the note or to execute the release.</p> <p>4. Deeds of Trust — Release—Payment.</p> <p>Where the trustee in a deed of trust was authorized by the instrument to release the deed of trust upon payment of the note secured, a release executed without payment of the note is invalid.</p> <p>5. Deeds of Trust — Subsequent Purchasers — Notice.</p> <p>Subsequent purchasers of property covered by a deed of trust are charged with notice of the conditions upon which the trustee is authorized to release the deed of trust.</p> <p>6. Bills and Notes — Deeds of Trust — Foreclosure—Laches.</p> <p>Where the holder of a note secured by deed of trust brought an action to foreclose within two years after the maturity of the note, he was not guilty of such laches as will bar his recovery as against an unauthorized release by the trustee.</p> <p>7. Laches — Burden of Proof.</p> <p>Laches is a matter of defense, and the burden of proof is upon the defendant to establish it.</p> <p>8. Deeds of Trust — Foreclosure—Unauthorized Release — Fraud— Limitation.</p> <p>An action by the holder of a promissory note for personal judgment and to foreclose a deed of trust securing the same, and incidentally to cancel an unauthorized release deed executed by the trustee, is not an action for relief on the ground of fraud, such as is required to be brought within three years after the discovery of the facts constituting the fraud, but the action may be brought at any time within six years from the maturity of the note.</p>

<p>1. Bills and Notes — Trusts and Trustees.</p> <p>Where a promissory note held in trust was hy the' trustee placed in the hands of an attorney for collection, the trust would follow the money so collected, and the attorney making the 'collection could not apply the same on an individual indebtedness of the trustee.</p> <p>2. Appellate Practice — Abstract of Record.</p> <p>Where the abstract of record does not contain the evidence referred to in the assignment ■ of errors and relied on for a reversal, the appellate court may dismiss the appeal or affirm the judgment.</p> <p>3. Bills and Notes — Trusts and Trustees — Evidence.</p> <p>Evidence examined and held sufficient to sustain a finding that a promissory note was held in trust, and that one who received the note from the trustee received it for collection and not as a bona fide holder for a valuable consideration.</p>

<p>1. Chattel Mortgages — Foreclosure—Possession.</p> <p>In order that a foreclosure of. a chattel mortgage shall be good as against creditors of the mortgagor, the possession taken by the mortgagee must be of the same character as is required of a purchaser of personal property.</p> <p>2. Same.</p> <p>Where a mortgagee who held a chattel mortgage on certain horses, harness and vehicles in a livery stable went to the stable and declared that he took possession of the same under the chattel mortgage,' and directed a hostler employed at the stable to remain in possession for him, but there was no removal or disturbance of the property, there was no such change of possession as is required to support a foreclosure of a chattel mortgage as against other' creditors of the mortgagor. And the fact that the mortgagee owned the stable which he had leased to the mortgagor, was of no consequence.</p> <p>3. Same — Execution—Laches.</p> <p>■Where a mortgagee attempted to foreclose a chattel mortgage, but failed to take possession of the .property, and the mortgagors made a bill of sale of the property to the mortgagee, who made a bill of sale to one of the mortgagors and took another chattel mortgage on the same property, which was recorded, the foreclosure and bills of sale were void as to creditors asserting their rights with diligence, but as to creditors who-had an execution issued' and placed in the hands of the sheriff more than a month before the attempted foreclosure, with direction to the sheriff not to levy, and which was not levied on the property until more than a month after the record of the second chattel mortgage, the foreclosure and second chattel mortgage were valid.</p> <p>4. Execution — Lien—Laches.</p> <p>Ordinarily a writ of execution is a lien upon the personal property of the judgment debtor from the time of its delivery to the officer, but where at the instance of the creditor it lies inactive in the officer’s hands, its lien is subordinated to that of another creditor who subsequently,- and before its levy, secures himself upon the property.</p>

<p>1. Mining Claims — Relocation of Abandoned Claim — Location Certificate — Statutory Construction.</p> <p>In relocating an abandoned mining claim it is not necessary that the location certificate should state that the claim is located as abandoned property. In section 3162 Mills’ Ann. Stats, providing that “the location certificate may state that the whole or any part of the new location is located as abandoned property,” the word “may” should be construed as permissive and discretionary, and not as mandatory.</p> <p>2. Mining Claims — Description—Statutory Construction.</p> <p>A description in a location certificate of a mining claim which ties the claim hy course and distance to a patented claim is sufficient to comply with the statute requiring the description to refer to some natural object or permanent monument.</p> <p>3. Appellate Practice — Bill of Exceptions — Abstract of Record— Continuance.</p> <p>An assignment of error based on the ruling of the court denying an application for continuance will not be considered where the abstract of record fails to show that an exception was taken to the ruling of the court and preserved by bill of exceptions. . *</p> <p>4. Appellate Practice — Motion for New Trial — Bill of Exceptions — Abstract of Record.</p> <p>An assignment of error based on the ruling of the court denying a motion for new trial will not he considered where the abstract of record fails to show that an exception was taken to the ruling of the court and preserved by bill of exceptions. The appearance of the motion for new trial and exception to the ruling of the court thereon in the abstract of record proper is not sufficient.</p>

On the 23d day of November, 1889, the following ordinance was adopted by the city conncil of the city of Denver: . “Be it enacted by the City Conncil of the City of Denver. “ARTICLE 1. “Section 1.

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

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

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

<p>1. Watqr Rights — Tributaries.</p> <p>A tributary to a stream which a prior appropriator of water from the stream would be entitled to prevent a subsequent appropriator from diverting, is not limited to a running natural surface stream which empties into the stream from which the appropriation is made.</p> <p>2. Water Rights — Tributary Sources — Pleading.</p> <p>In an action by a prior appropriator of water from a stream to restrain a subsequent appropriator from diverting waters which contributed to the supply of the stream, a complaint which alleged that the water diverted by defendant consisted of (1) waste and seepage water arising under certain land, (2) drainage water from said land collected by drainage ditches and discharged into the stream, (3) sewer- and waste water from a city sewer, (4) waste and seepage water from the lateral ditches of an irrigation canal, and (5) waste and seepage water from a mill power canal, and that prior to the diversion of the same by defendant all the water from the enumerated sources was discharged into the stream above plaintiff’s headgate and contributed to the supply thereof, sufficiently alleged the diversion of tributary waters of the stream to make the complaint good as against a general demurrer on that ground.</p> <p>3. Water Rights — Percolating and Drainage Water — Pleading,</p> <p>In an action by a prior appropriator of water from' a stream to restrain a subsequent appropriator from diverting the tributary waters of the stream, if the defendant relies upon the defense that he has appropriated only percolating, drainage and seepage waters which he has acquired a right to under section 2269 Mills’ Ann. Stats., such defense must be presented by-answer, and cannot be raised by demurrer.</p> <p>4. Laches — Pleading.</p> <p>Laches is not a ground of demurrer, but should be raised by answer.</p>

<p>1. Bills and Notes — Verdicts.</p> <p>In an action upon a promissory note, where the only issue was as to the delivery of the note, the fact that in a verdict for plaintiff the jury omitted to find the amount of the recovery, worked no prejudice to defendant.</p> <p>2. Appellate Practice — Abstract of Record — Instructions.</p> <p>Where a jury after retiring for deliberation. returned into court and requested further instructions, which request was denied by the court, and the abstract of record contains neither the instructions given nor the request for further instructions, it will be presumed that no error was committed in denying the request.</p>

<p>1. City Councils — Contested Elections; — Jurisdiction—Constitutional Law.</p> <p>Section 4490 Mills’ Ann. Stats., conferring upon city councils jurisdiction to determine the election and qualification of their own members, is constitutional.</p> <p>2. Certiorari — Jurisdiction.</p> <p>District courts have jurisdiction to review the action of inferior courts and tribunals upon writ of certiorari only as to the question of jurisdiction of the inferior court or tribunal.</p> <p>3. Same — City Councils — Contested Election.</p> <p>The district court had no jurisdiction ón certiorari to review the action of a city council in a matter of contest of election of its members, and to determine whether the action of the council in such contested election was justified by the evidence.</p>

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

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

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

<p>1. Partnership — Claim Against Individual Member.</p> <p>A claim against one of the individual members of a partnership, existing prior to the time of the creation of the partnership, cannot be allowed as a claim against the partnership.</p> <p>2. Partnership — Evidence—Claim.</p> <p>Evidence held insufficient to prove a claim against a partnership.</p>

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

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

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

<p>Statutory Construction — Service of Process — Disqualification of Sheriff.</p> <p>Section 869 Mills’ Ann. Stats., which, provides that whenever any party, his agent or attorney, shall make and file with the clerk of the proper court an affidavit stating that he believes that the sheriff will not, by reason of either partiality, prejudice, consanguinity or interest, faithfully perform his duties in any suit commenced or about to be commenced in such court, the clerk shall issue process in such suit to the coroner, who shall execute the same, is mandatory; and the fact that a party filed with his affidavit a motion addressed to the court did not authorize the opposing party to file counter-affidavits, nor authorize the court to exercise its discretion in granting or refusing such motion.</p>

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

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

<p>1. Cities and Towns — Personal Injuries — Notice.</p> <p>Under section 9,' article IX, of the charter of the city of Denver (Session Laws 1893, p. 233), requiring notice to be given the city by any person injured upon any of the streets, avenues, alleys, sidewalks or other public places, within thirty days after receiving such injury, before the city shall be liable for damages, if such notice is sufficiently full as to the cause of injury so that guided by it the city can investigate the question of its liability, then the notice is sufficient.</p> <p>2. Same.</p> <p>In an action against the city of Denver for damages for personal injuries to plaintiff alleged to have been caused by falling into a covered hole or pitfall in the sidewalk, a notice served on defendant, within the time required, giving date and place of accident, and its cause a pitfall into which plaintiff stepped,' was sufficient.</p> <p>3. Practice — Judgments—Amendment.</p> <p>The amendment of a judgment so as to conform to the verdict after an appeal is taken from the judgment, is permissible.</p>

<p>1. Practice in Civil Actions — Trial by Jury — Waiver.</p> <p>Where a party to an action fails to appear, he waives his right to a trial by jury.</p> <p>2. Evidence — Contracts—Revenue Stamps — Federal Statute Not Applicable to State Courts.</p> <p>The federal revenue act of 1898 (30 U. S. Stats, at Large, 455, section 14), which provides that no instrument required by law to be stamped shall be used as evidence in any court until a legal stamp shall have been affixed thereto, does not apply to state courts.</p> <p>3. Contracts — Forfeiture—Rescission. ■</p> <p>A deed to mining property was placed in escrow with an agreement that it should be delivered to the grantee if he should make certain stipulated payments, but upon failure of the grantee to make the payments to be returned to the grantor, and the agreement further provided for the forfeiture of all payments made by the grantee in case of his failure, also for the payment of certain royalties on all ores taken from the mine by the grantee. Held, that a failure of the grantee to make the payments and a demand by the grantor for the return of the deed, forfeited the right of the grantee to purchase the property-but did not rescind the contract, and the grantor might proceed upon the contract in an action to recover of the grantee the royalties due thereon.</p> <p>4. Mines and Mining — Contracts—Royalties—Smelter Returns.</p> <p>In a contract to pay royalties upon the “mint or smelter returns” of all ores to be removed from a mine, where the parties to the contract construed it by paying royalty on the value of the ore at the smelter, less the smelting charges; in the absence of other evidence the court will adopt such construction as the meaning of “mint or smelter returns” in the contract, rather than the value of thé ore after deducting smelting charges and the charges for hauling, freight and switching in delivering the ore to the smelter.</p>

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

<p>1. Life Insurance — Application—Warranty.</p> <p>Where an application for life insurance over the signature of the applicant concluded with the following agreement: “I also agree that all the foregoing statements and answers, as well as those that I make to the company’s medical examiner in continuation of this application; are by me warranted to be true, and are offered to the company as a consideration for the contract, which I hereby agree to accept as issued by the company in conformity with this application,” and the policy issued thereon provided that, “in consideration of the application for this policy, and all statements made therein and to the medical examiner * * * all of which are made a part of this policy,” the company promised to pay the amount of the insurance, the warranties in the application were a part of the contract of insurance, and if any statement in the application warranted to be true was untrue, no recovery can be had on the policy.</p> <p>2. Life Insurance — Application—Medical Examiner’s Statement.</p> <p>Where the preliminary papers to the issuance of a policy of life insurance consisted of three parts, one headed “Part I of Application,” etc., containing questions to be propounded by the agent and answered by the applicant, and to be signed by the applicant; one headed “Part II of Application,” etc., also to be signed by the applicant, which contained questions to be propounded by the medical examiner and answered by the applicant; and one headed “Part III of Application,” etc., to be signed only by the medical examiner, and to constitute his report to the company of the result of his medical examination, together with his opinion and recommendation as to the risk, part three (the medical examiner’s report) constituted no part of the application for insurance, and where the applicant signed and delivered the first two parts, the application was complete; and the refusal of the applicant to permit the medical examiner to conclude his examination upon which he was to make his report, would not operate as a withdrawal of the application, and its refusal hy the company was a refusal of his application for insurance. *</p> <p>3. Same.</p> <p>Where an application for life insurance warranted the truth of the statements and was made part of the contract by the policy, and one of the statements warranted to be true was that the applicant had never been declined or postponed by any life insurance company, the untruth of such statement would defeat the policy, notwithstanding the applicant, at the time, in good faith believed it to be true, a former application to another company having been declined because of a refusal of the applicant to permit the medical examiner to complete his examination, which the applicant supposed withdrew his application.</p>

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

By the 26th subdivision of section 20, article II of the charter of the city of Denver, approved April 3, 1893 (Session Laws 1893* p. 131), the city council was empowered to prevent the deposit of ashes in unsafe places; and,. by the 58th subdivision of the same section, to declare, prevent or abate nuisances on public or' private property, and the cause thereof.

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

<p>1. Corporations — Assignment of Stock — Water Rights.</p> <p>Where the stock-hook of a ditch company showed a stockholder to he the owner of 42 shares, hut it did not appear that certificates had been issued for said stock, except for 15 shares, an assignment by such stockholder of 15 shares of her stock to a trustee, as collateral security for a debt, without designating any particular shares, and without surrendering or transferring any particular certificate, the company issuing to said trustee a certificate for 15 shares, without stating in said certificate that it was in lieu of any other certificate, was not in violation of a by-law of the company, requiring that shares of stock should he transferred by recording a certificate of transfer upon the stock-hook, and indorsing the same upon the certificate of stock, or by the surrender and cancellation of the old certificate, and issuance of a new one of the same denomination as the old one.</p> <p>2. Same — Waiver.</p> <p>Where the stock-book of a corporation showed a' stockholder to be the owner of 27 shares of stock for which it did not appear any certificate had been issued, and said stockholder assigned 15 shares as collateral security without surrendering, transferring, or designating any particular certificate, and the corporation issued to the assignee a certificate for the 15 shares, which the assignee accepted in good faith, and loaned money thereon, although said new certificate was issued in violation of the provision of a by-law requiring the surrender of the original certificate, by the issuance of the new certificate, under the circumstances, the corporation waived a compliance with the provision of its by-laws, and cannot repudiate such new certificate on that ground.</p> <p>3. Same — Pledge—Chattel Mortgage.</p> <p>Where a landowner executed a deed of trust to land, and a certain number of 'shares of the capital stock of a ditch company, and at the same time made a separate assignment of the shares to the trustee, as collateral security for the debt, and provided in said contract of assignment that if the shares he not redeemed they should he sold in connection with the real estate described in the trust deed, and the ditch company issued and delivered to such trustee a certificate of stock for the number of shares assigned, the transaction was a pledging of the stock, as collateral security for the- debt, and not a chattel mortgage, and the statute limiting the time of the validity of chattel mortgages was not applicable.</p> <p>4. Corporations — Assignment of Stock.</p> <p>Shares of stock in a corporation as between the parties to .the transaction may be transferred by deed. The provision of the statute, that shares shall be transferable only on the books of the corporation in such manner as the articles of association or by-laws may prescribe, is not required to he observed in order to pass title, as between the parties to the transfer, and only the rights and interest of third persons are affected by an omission to comply with the statute.</p> <p>5. Same — Pledges—Foreclosure—Notice.</p> <p>Where shares of the capital stock of a corporation were pledged as collateral security for a debt, and the transfer to pledgee was duly entered upon the hooks of the corporation, such entry was notice to a subsequent purchaser from the pledgor, of the pledge and also of a foreclosure of the pledge, and a purchaser at the foreclosure sale had good title as against such subsequent purchaser, although the transfer at the foreclosure sale was not entered upon the hooks of the corporation.</p> <p>6. Corporations — Transfer of Stock — Waiver.</p> <p>Where a corporation refused to recognize the validity of a certificate of capital stock, claiming that it was an excess issue, in an action by a subsequent purchaser of said certificate to compel the corporation to recognize its validity, it was no defense to the action' that such subsequent purchaser had not presented the certificate and transfer thereof for registry.</p>

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

<p>Injunction — Action Upon Bond — Attorneys’ Fees.</p> <p>Counsel fees incurred in resisting an application for a preliminary writ of injunction are not recoverable as an element of damages in an action upon an injunction bond.</p>

<p>1. Corporations — Transfer of Stock — Refusal to Enter on Stock-book.</p> <p>The secretary of a corporation is justified in refusing to transfer stock upon the books of the corporation without the return of the original certificates, or a showing of their loss or destruction.</p> <p>2. Corporations — Transfer of Stock — Creditors.</p> <p>A transfer of stock of a corporation, in order to be good as against .the creditors of the assignor, must be entered on the books of the corporation, in conformity with section 508 Mills’ Ann. Stats., or, in the absence of such entry, it must appear that the assignee has done all in his power to comply with the requirements of the statute, and was prevented by the fault of the company, and not hy his own neglect.</p> <p>3. Same — Pledge.</p> <p>Where, at the time of the assignment of stock of a corporation, the certificates were in the hands of a pledgee, the assignee assuming the debt for which the stock was pledged, and the assignee presented to the secretary of the corporation an order from the assignor for the transfer on the corporation’s books, which the secretary refused to do without a return of the originals, and the assignee made no further effort to secure such entry on the corporation books, although the loan for which the certificates were pledged was extended hy said assignee, and, after paying off said loan he, for sixty days, failed to return said certificates for transfer on the corporation books, or to make any showing of their loss under the by-laws of the corporation, the stock was subject to levy under an execution against the assignor, in whose name the stock stood upon the corporation books. •</p>

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

<p>Mandamus — Jurisdiction—Vacation—Judge at Chambers.</p> <p>A district judge has no jurisdiction in vacation at his chambers to enter an order denying upon its merits a petition for an alternative 'writ of mandamus.</p>

<p>1. Fraudulent Conveyances — Creditors—Pleading.</p> <p>Under section 2030 Mills’ Ann. Stats., providing that conveyances made with the intent to hinder, delay or defraud creditors, or other persons, shall he void, a party need not have been an existing creditor at the time the conveyance was executed in order to invoke the protection- of the statute, and in a petition to set aside such a conveyance, it is not necessary to allege that it was made with the intent to defraud plaintiff.</p> <p>2. Appellate Practice — Evidence—Verdict.</p> <p>The verdict of a jury upon conflicting evidence, is conclusive on the appellate court.</p> <p>3. Pleading — Bankruptcy—Appellate Practice.</p> <p>Where an intervener in an attachment suit claiming the land under a conveyance from the attachment debtor, against whom judgment had been rendered, filed a petition in the cause in the appellate court alleging that, since the rendition of judgment therein, the defendants have been declared bankrupts, and discharged in bankruptcy, and that the debt, which was the basis of the judgment in the case, was proved and allowed in the bankruptcy proceedings, and that the judgment plaintiff received his pro rata share of the bankrupt estate, and asked that the judgment be set aside, but fails to disclose when the petition in bankruptcy was filed, the petition will not be considered.</p>

<p>1. Landlord and Tenant — Fixtures—Removal.</p> <p>The rule that whatever is affixed to the land becomes part of the freehold, does not apply as between landlord and tenant. Articles affixed by a tenant' to the demised premises, for the purpose of carrying on the business for which they are leased, are removable by him, however firmly they may be attached. But the removal must be effected during the term of the lease, if it remains in force for its full term; or, if it is terminated by the act of the landlord before the time limited by itself for expiration, within a reasonable time after it is so terminated.</p> <p>2. Landlord and Tenant — Fixtures Left on Premises at Request of Landlord — Removal.</p> <p>Where machinery attached to leased premises by the tenant is permitted to remain after the expiration of the term, at. the request of the landlord, the question of reasonable time within which the tenant may remove the same, does not arise.</p> <p>3. Same.</p> <p>Where, after the expiration of the term of a lease, the grantee of the landlord recognized the right of the tenant to remove certain machinery attached to the premises, and requested him not to do so, and leased the machinery from said tenant, and agreed to pay rent for the same, he is estopped to deny th© tenant’s ownership of, and right to, remove such machinery, because it had not been removed in a reasonable time.</p> <p>4. Landlord and Tenant — Fixtures—Removal—Demand.</p> <p>Where a tenant, after the expiration of the term, was entitled to remove certain machinery attached to the premises by him, the fact that his demand for the machinery embraced more property than he was entitled to remove, would not render such demand ineffective if the owner refused to turn over any part of the property.</p> <p>5. Same — Evidence—Conversion.</p> <p>In an action by a tenant against the landlord for the value of machinery attached to the premises hy the tenant, proof of demand by the tenant and refusal of the owner to permit the removal of the property, is necessary only for the purpose of showing a conversion, and if the fact of conversion otherwise appears, the demand and refusal become immaterial.</p> <p>6. Same — Letter of Attorney.</p> <p>In an action by a tenant against the grantee of the landlord for the value of certain machinery attached to the premises hy the tenant, a letter written to plaintiff by defendant’s attorney, introduced in evidence without objection from defendant, and in which defendant was asserted to he the owner of the property, and plaintiff’s .claim to it was repudiated, was evidence of a conversion.</p> <p>7. Parties — Joint Trespass — Dismissal—Several Liability.</p> <p>In an action against joint trespassers for conversion of property, the liability of defendants is joint and several, and at any time before judgment the action may be dismissed as to one defendant and proceed against the other, or the court or jury in such action may find one defendant guilty and another not guilty.</p> <p>8. Evidence — Conversion—Value—Assessment for Taxes.</p> <p>In an action for the value of property alleged to have been converted, the record of the assessment of the property for taxes is not admissible in evidence, either to prove title or value of property.</p> <p>9. Evidence — Conversion—Value—Purchase Price.</p> <p>In an action for the value of property alleged to have been converted, where plaintiff testified that he Knew nothing of the condition of the property at the time of conversion, the cost of the property to plaintiff was inadmissible to prove its value.</p>

<p>1. Corporations — Enjoining Sale of Stock — Damages—Action on Injunction Bond.</p> <p>Where the owner of corporation stock was enjoined from selling it, pending the writ, and but for the writ he could and would have sold it, and when the writ was dissolved the stock was worthless, and remained so, the injunction was the proximate cause of the damage resulting from the loss of a sale of the stock, and an action will lie upon the injunction bond for such damages.</p> <p>2. Same — Measure of Damage.</p> <p>Where the sale of corporation stock was enjoined, which, ac the time of issuing the writ, could have been sold for more than the penalty of the bond, and when the injunction was dissolved the stock was worthless, and remained so, the measure of damage in an action upon the injunction bond was the penalty of the bond.</p> <p>3. Corporations — Enjoining Sale of Stock — Action on Bond— Evidence.</p> <p>In an action upon an injunction bond for damages resulting from a prevention of the sale of corporate stock, evidence was admissible to show that plaintiff had a purchaser who could and would have bought the stock, if he had not been prevented by the injunction.</p> <p>4. Pleading — Making More Certain — Appellate Practice.</p> <p>If a defendant desires a complaint to be made more certain, he must make a motion for an order to that effect. It is too late to raise such objection for the first time in the appellate court.</p> <p>5. Injunction — Preventing Sale by Minor — Order of Court— Action on Bond.</p> <p>Where defendants prevented a minor from selling property by a writ of injunction, in an action for damages upon the injunction bond, they cannot avoid liability on the ground that no order of court had been obtained for the sale of the property.</p> <p>6. Practice — Evidence—Recalling Jury — Reading Stenographer's Notes.</p> <p>Recalling a jury after they had retired, and reading to them the stenographer’s notes of .the testimony of a witness, in the absence of a party, is not reversible ’.error where the verdict of the jury is right, and is the only verdict that could reasonably have been rendered on the evidence.</p> <p>7. Injunctions — Restraining Sale of Property — Fraudulent Conveyance.</p> <p>In an action upon an injunction bond for damages caused by’ restraining the sale of property, defendant cannot avoid liability on the ground that the property was put in plaintiff’s name in fraud of the creditors of the real owner.</p>