Volume 20 — Colorado Reports

JError to the District Court of Arapahoe County. Action upon a promissory note executed, and made payable at Springfield, Massachusetts.

Action for damages occasioned by fire. Judgment for plaintiffs. Defendant appeals. Appellees were the owners of certain stacks of grain and employed appellant to thresh the same.

It is alleged in the complaint: “ That on the 14th day of March, 1890, plaintiff was and still is the owner of lots 1 and 2 in block 79 in the former city of South Pueblo, now part of the city of Pueblo, said lots being situate at the corner of ‘ C ’ and Mechanic streets, and having a frontage of 140 feet on the former and 50 feet on the latter street; that said lots were improved with valuable buildings, and prior to the grievance complained of, said property was valuable…

Action for rescission of contract. J udgment for plaintiffs; Defendant appeals.

Action for damages for breach of contract. Oil demurrer to complaint judgment was rendered in favor of defendant. Plaintiffs bring the cause to this court by writ of error.

Appeal from-the District ■Court of Arapahoe County. ■ Action upon promissory note. Judgment in favor of plaintiffs. Defendants appeal.' The facts sufficiently appear in the opinion.

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

¡Error to the District Court of Arapahoe County. This is an application by J. S. Majors, Ira R. Jackson, O. E. Miller, L. Faifer, T. M. Alderson, F. J. Hurd and W. Robinson, stockholders in the Zalinger Printing Company, to be allowed to defend in behalf of the company in a certain action - pending in the district court of Arapahoe county, wherein Jane Taussig is plaintiff and the Zalinger Printing Company defendant.

Action by wife for alienating the affections of her husband and causing him to separate from and desert her; the defendant was the husband’s mother. Verdict .and judgment for plaintiff in the sum of 112,500. Defendant appeals. The complaint, omitting the formal parts, is as follows : “ On or about the 9th day of July, 1888, in the state of New York, the plaintiff was lawfully married to one Edward L. Williams, who is the son of defendant.

<p>1. Statutoby Constbuction.</p> <p>A statute must be construed as a whole. If a section standing alone . will admit of two constructions, by one of which the entire act may be harmonized, while the other would create discord between the different provisions, the former should be adopted.</p> <p>2. Jubisdiction.</p> <p>This court has jurisdiction to entertain an appeal from the court of appeals where the judgment of the trial court exceeds twenty-five hundred dollars, irrespective of whether the judgment of the court of appeals was one of affirmance or reversal. The same is true as to writs of error.</p> <p>3. Appellate Pbactice.</p> <p>An appeal from the court of appeals which was not prayed for within five days after the time of rendering the judgment, is not perfected as required by law and will be dismissed.</p> <p>4. Same.</p> <p>Although an appeal may be dismissed for want of jurisdiction, yet, if the court would have had jurisdiction if the case had been brought on writ of error,'tire matter will, under the act of 1893, be held for review as pending on error.</p>

Replevin for a portable sawmill, horses, harness, wagons, lumber and other personal property seized by appellant Roberts, as sheriff, under certain writs of attachment and execution issued in favor of one H. R. Kamm against George F. Wright. After the levy, of the writ of replevin Kamm secured the release of the property by giving a forthcoming bond. Kamm afterwards obtained judgment against Wright and the property was sold to satisfy the same.

As stated in the Opinion, no authenticated copy of the record has been lodged in the clerk’s office of this court as a foundation for this appeal.

Action for water furnished and delivered. General demurrer to complaint sustained, and judgment dismissing plaintiff’s complaint. Plaintiff brings the cause to this court by writ of error.

Action for commissions for the sale of real estate. Judgment for plaintiff for $1,500. Defendants appeal. Both plaintiff and defendants were real estate brokers. Shaw, a nonresident owner of certain property in the city of Denver, placed the same with a Boston firm of brokers for sale for $65,000 net to the owner.

<p>1. Agency — Contbacts—Evidence.</p> <p>A written authority to a broker to sell land at a certain price per acre net, does not conclusively imply that the sale is to be for cash, and p>arol testimony is admissible to supplement and explain it.</p> <p>2. Evidence:</p> <p>A parol stipulation may always be shown that a written instrument was not to become of binding force unless some condition precedent was previously fulfilled.</p> <p>3. Appellate Pbactice — Exceptions.</p> <p>Questions arising upon the giving of an instruction, to the giving of which no objection was made in apt time in the court below, and no exception preserved in the record, are not properly before tbe court for consideration.</p> <p>4. Burdex of Proof.</p> <p>The burden of proof is upon one who, having given authority to a broker to sell land, claims that there was a revocation of the broker’s authority prior to a sale.</p>

The facts upon which the controversy in this case arises are in substance as follows : In the fore part of August, 1886, one W. S. Case brought to Colorado Springs a number of horses. He borrowed from the People’s Bank in that city $400, for which he gave his note, which J. P. Pracht signed as an accommodation maker. As further security for this note he executed and delivered to the bank a chattel mortgage upon the stock.

On the 23d of October, 1890, the appellee instituted this action in'the county court of Gilpin county against the appellant to recover $87 alleged to be due him for work and labor performed for appellant upon the Mary Miller mine between the first day of August and the first day of October, 1890; and also to recover the sum of $84.50 for work done by Louis Avanzini in the same mine, between the same dates, as assignee of such claim.

Action for personal injuries occasioned by negligence in the operation of street railway car. Judgment for plaintiff. Defendant appeals. STATEMENT OE PRINCIPAL EACTS. On February 4, 1889, about nine o’clock in the evening, the plaintiff Ann Owens took passage on one of defendant’s cable cars at the corner of 15th and Stout streets, to be carried to the corner of Colfax avenue and Race street.

Action for damages for personal injuries. Judgment for plaintiff. Defendant appeals. In July, 1890, The Denver & Berkeley Park Rapid Transit Company owned and operated a line of street railway extending from the city of Denver to Berkeley Lake. It operated the road by means of passenger cars drawn by steam motors, and was a common carrier of passengers for hire.

This action was originally instituted before J. S. Truex, a justice of the peace, on the 28th day of June, 1890. Summons was served on the defendant June 30, 1890; made returnable on the 5th day of July, 1890. On that day an affidavit for a change of venue was filed in behalf of plaintiffs, and the change of venue granted to one L. D. Jerome, a justice of the peace, and the papers in the case given to the constable, A. W. Hendricks, to be delivered.

<p>Res Judicata.</p> <p>A j udgment between parties is conclusive not only as to tbe matters which were in fact determined, but as to all other matters which might have been litigated as incidental or essentially connected with the subject-matter of the litigation, whether the same were or were not, as a matter of fact, considered; but this rule does not aj)ply to a case where the matter relied on was not incidental or essential to the determination of the subject-matter, but was a distinct and separate cause of action which the record shows was left undetermined.</p>

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

Action for materials furnished and labor performed by plaintiff for defendant. Judgment for plaintiff. Defendant appeals.

This action was brought by The Denver Tramway Company (plaintiff below) on December 11,1889, to enjoin the then mayor and chief of police of the city of Denver from interfering with its employees in the construction of a certain line of electric street railway in a street of the city of Denver.

Action for goods sold and delivered. Default and judgment in favor of plaintiffs. Motion of defendant to set aside judgment and default and for leave to answer denied. Defendant appeals.

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

Action for claim and delivery of personal property. Judgment for defendants. Plaintiff brings error. Max Morris, the owner of a certain stock of merchandise in the town of Glenwood Springs, in Garfield county, Colorado, executed a chattel mortgage to plaintiff in error, Greig, upon the property, to secure the payment of certain promissory notes executed by Morris and made payable to plaintiff in error, Greig.

This is an action brought by John F. Bell, as county treasurer for the county of La Plata, plaintiff below, against The Montezuma Valley Water Supply Company and The Colorado Water Suppty Company, defendants below, to recover from the former company certain taxes alleged to have been assessed and levied upon the personal and real property of said company for the years 1887 and 1888, and to have such taxes adjudged a lien upon the realty owned by the former company during…

Action tinder the statute by a father to recover damages for negligently causing the death of his infant child. Verdict and judgment for plaintiff. Defendant appeals. The. facts sufficiently appear in the opinion.

Mandamus to compel certain railroad corporations to construct a viaduct over their tracks on Nineteenth street in the city of Denver. In the district court the proceedings were dismissed for insufficiency of the petitions. Petitioner brings error. Concurrent actions were brought by tbe city against each railroad company having tracks intersecting or extending along Nineteenth street in the city of Denver.

This action was originally brought by defendant in error before a justice of the peace to recover possession of a quantity of brick, and, upon an appeal to the county court of Chaffee county, was tried to a jury and a verdict rendered in his favor.

Error to the County Court of Larimer County. On motion to dismiss the writ of error herein, the following opinion was rendered.

Motion to dismiss tbe writ of error. The motion'was based upon a duly verified petition which, omitting the formal parts, was as follows : “ Your petitioner, E. Hyde Rust, receiver of the American Water Works Company (of New Jersey), respectfully petitions the court and prays that the writ of error in the above entitled cause be dismissed, and in support of said petition represents unto the court as follows : “ (1) The American Water Works Company (of New Jersey) was…

This action was brought on the 20th of February, 1890, by plaintiff in error, Henry C. Taylor, against defendants in error, John M. Wallace and Sidney S. Wallace, to recover for breach of covenant.- The facts upon which he predicates his cause of action are in substance as follows : On the 14th day of December, 1880, at Chicago, Cook county, Illinois, the defendants by their warranty deed, with full covenants of warrant}*-, conveyed to Samuel Sharp the south half of the…

<p>Quieting Title — Possession.</p> <p>The possession of a tenant is the possession of his landlord, and is sufficient to enable the latter to maintain an action to quiet title, notwithstanding the tenant may, without his knowledge or consent, have paid rent to the party claiming .adversely.</p>

Appeal from the County Court of Arapahoe County. Action for recovery of money on special contract. Judgment in favor of plaintiff for $147.50 and costs. Defendant appeals.

Original Proceedings by Mandamus. The cases were commenced by the filing of sworn petitions. The petitions and answers are in substance the same in both cases. The opinion of the court was rendered upon demurrers to the answers, the petitioners not desiring to plead over.

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

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

On the 13th day of May, 1890, Joseph FT. Baxter, the defendant in error, filed his complaint in the county court of Arapahoe county, against Emily Waddington and Joseph Waddington, to recover upon certain promissory notes executed by them, and sued out a writ of attachment upon the ground that defendants were nonresidents of the state of Colorado; and caused-William K. Fleming, the plaintiff in error, to be summoned as garnishee.

<p>Statute oe Frauds.</p> <p>An agreement between two or more persons to explore the public domain, and discover and locate lodes for the joint benefit of all, is not within the statute of frauds, and hence need not be in writing'.</p>

Las Animas County. The plaintiff, Alonzo Hastings, in his complaint alleges: That between-the first day of March, 1888, and the first day of January, 1889, the plaintiff, at the special instance and request of the defendants, performed labor and services, as broker and agent of defendants, in negotiating the sale of certain coal lands, “ the property of said defendants,” situate in the county of Las Animas and state of Colorado. .

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

jError to the District Court of Arapahoe County. Action in the district court by The Denver City-Water Works Company, plaintiff, against The Citizens’ Water Company, defendant. Injunctive relief was applied for. L. H. Wood and others (plaintiffs in error herein) applied by petition to intervene. Leave to file their petition was denied; and thereupon they bring the cause to this court by writ of error.

Action for breach of contract. Trial and judgment for plaintiff. Defendants appeal.

<p>Gbeio v. Clement, ante, 167, Followed.</p> <p>The judgment in this case is reversed as a result of the reversal in Gh-eig v. Clement, ante, 167.</p>

The plaintiff in error was convicted for receiving a deposit of $254.70 from one James Taggert'in The Chaffee County Bank, of which he was at the time the owner and manager, knowing at the time that said bank was insolvent.

Plaintiee in his amended complaint alleges : “First: That on the 22d day of February, A. D. 1890, and prior thereto, James A. McGonigle, the defendant above named, was the contractor for the building of a certain stone and brick building in the city of Pueblo, county of Pueblo, and state of Colorado, which said building, otherwise known as the new Opera House Block, was on said day and for a long time .prior thereto had been in the course of construction by said-defendant,…

This action was originally brought before a justice of the peace to recover for services rendered. There are no written pleadings. Upon an appeal to the county court the case was tried to a jury and resulted in a verdict and judgment in favor of plaintiff for the sum of $153.55. Defendant brings the case here on appeal.

The facts upon which a recovery is predicated are in substance as follows : The plaintiff held the possessory right, by virtue of a compliance with the preemption laws of the United States, to 160 acres of land situate in Las Animas county. The land is in the arid region, and in order to cultivate it, it was necessary to procure an artificial supply of water to irrigate the crops grown thereon.

Action for the recovery of real estate (ejectment). Defenses, general denial, and statute of limitations. Trial by the court without a jury; finding and judgment for plaintiff. Defendant appeals.

The facts out of which this controversy arises are in substance as follows : On March 9, 1889, the defendant Riethman leased to defendant Smith certain lots in the city of Denver for the term of five years; that afterwards, on June 18, 1889, the lease was extended for a period of ten years from that date. Smith erected on said lots a theater building, and placed therein certain furniture, the ownership of which is the principal question at issue in this controversy.

Action for personal injuries occasioned by alleged negligence. Defenses : general denial, contributory negligence, etc. Verdict and judgment for plaintiff. Defendant appeals.

Action for broker’s commission upon the sale of real estate.

On the 13th of November, 1890, the southwest quarter of section 5, tbwnship 4 south, range 67 west, in the-county of Arapahoe and state of Colorado, was duly platted and annexed to the town of Montclair as- “ Porter and Raymond’s Montclair, an Addition to the Town of Montclair,” and on January 1, 1891, the. south half of the southeast quarter of section 6, in said towmship and range, was duly platted and annexed to said- town as “Porter and Raymond’s Second Addition to…

The facts upon which the question presented for our consideration upon this review arose are in brief as follows: Clark and Denman, the defendants in error, brought an action against Samuel Fickes and Samuel Bennett to recover for goods, wares and merchandise sold and delivered, sued out a writ of attachment and levied upon one “ engine ‘Reliable ’ No. 78; one ‘ Bay State ’ boiler, thirty-five horse power; one No. 2 ‘Dixie ’ sawmill and attachments, including saws and all…

<p> Error to the Oounty Court of Pithin County. </p>

This is an action to determine the right of possession to certain real estate in Weld county, viz., the west half of the northeast quarter, and the east half of the northwest quarter In the third defense it is alleged that the land was originally filed on as a United States homestead entry in 1884, but that final proof was made December 7, 1888, as a preemption entry, but it is averred that the premises were occupied by defendant Nathan Weare and his wife as a homestead.

<p> Appeal from the Court of Appeals. </p>

JSrror to the District Court of Pueblo County. The defendants in error instituted four actions in ejectment against a large number of persons, including plaintiffs-in error, to recover possession of lots 1 and 2, of the southwest quarter of section 31, township 20 south, of range 64 west. The complaints allege a joint cause of action against all of the defendants, and prajr for joint relief, both as to recovery of possession of the property, and damages.

JError to the District Court of Arapahoe County. Application in the district court for writ of mandamus. Judgment was rendered awarding the peremptory writ commanding the state auditor to issue his warrant for the payment of the residue of a certain legislative appropriation for the Soldiers’ and Sailors’ Home. The auditor seeks a review and reversal of the judgment by writ of error.

<p>1. Tax Warrant.</p> <p>A tax warrant is not invalid because it does not run in the name of “The People of the State of Colorado,” as judicial process is required to do. Haley v. Elliott, 16 Colo. 159, approved.</p> <p>2. Revenue Laws — Defects.</p> <p>Informalities in complying with the requirements of the revenue laws of this state, do not render proceedings for the collection of taxes illegal; defects in form in any assessment list or tax roll may be corrected by the assessor or treasurer; our laws are purposely framed so that technical objections without merit shall not interfere with the collection of the public revenue.</p> <p>3. Errors Without Prejudice.</p> <p>The rejection of evidence which if admitted would not have improved the case of the party offering it, is not such error as should reverse the judgment.</p> <p>Where in an assessment roll there is a defective description of the realty, the validity of the tax against the personalty is not necessarily affected.</p> <p>4. Defects in Assessment Roll.</p> <p>Where in the copy of an assessment roll the dollar mark ($) was omitted before the valuation figures; held that it was one of those omissions or informalities which the assessor or treasurer is authorized to correct.</p> <p>5. County Treasurer’s Books.</p> <p>Under the statutes of this state in 1884 the county treasurer’s books (the" tax roll or warrant) were the final repository of the work of assessment and levy of taxes, and a certified copy of the same was evidence prima facie, of the taxes so levied; the original roll of the assessor was, also, competent evidence to a certain extent, but its rejection was not reversible error where it did not tend to impeach the tax roll or warrant already before the court.</p>

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

<p>1. Practice in Civil Actions — Intervention.</p> <p>As a general rule, a party will not be allowed to intervene between the trial and the rendition of judgment. Good practice requires the petition to be filed before the trial is entered upon.</p> <p>2. Judgment and Execution Liens.</p> <p>The lien of a judgment and execution attaches only to the judgment debtor’s real interest in the property.</p> <p>8. Estoppel.</p> <p>Where the condition of the title is known to both parties, or both have the same means of ascertaining the truth, there is no estoppel.</p>

Original Application in this Court for Injunction. The complaint is as follows: “The people of the state of Colorado, ex rel.

This is an action brought by the plaintiff, who sues for himself and on behalf of all other'stockholders similarly situated who may wish to join. The defendants 'are The Pearl Mining Company, and seven others, who are alleged to be stockholders and directors of the company. The action was originally commenced by Sarah F. Cooper, administratrix of the estate of Isaac Cooper, deceased.

This is an action brought upon a criminal recognizance, in the name of The People, against the plaintiffs in error.

Mrror 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. Session Laws of that year, p. 451. The act contains, among other things, the following: “ Sec. 2.

George W. Snider, appellant, instituted this suit in the district court of El Paso county on January 5, 1893, against Charles Rinehart and Emma R. Austin, as the heirs of Rose Rinehart, deceased, to enjoin the enforcement of a judgment at law theretofore and on the 12th day of April, 1888, rendered against appellant in favor of said Rose.

Action to enjoin the assessment, levy and collection of taxes upon certain propert}^ in Jefferson county by or for the use of the city of Denver. Trial and judgment in favor of plaintiffs, granting the perpetual injunction as prayed for. Defendants appeal. The complaint is very lengthy.

<p> Error to the County Court af Arapahoe County, </p>

This action was brought by Camp against Fulmele to recover the exclusive possession of forty acres of land. The facts upon which plaintiff relies are substantially as follows: This land is included in, and a part of, the southwest quarter of section 3, township 5 north, of range 65 west, said section being one of the numbered sections embraced in the congressional grant to the Denver Pacific Railway and Telegraph Company.

John Reid in his lifetime, executed certain promissory notes, securing the same by deeds of trust upon real estate. Afterwards Reid died, leaving such notes unpaid, and also unsecured debts aggregating a large amount. Letters of administration upon Reid’s estate were duly issued, but the secured notes were not presented to the county court for allowance prior to the institution of the present action, or at all.

<p>1. JUBISDICTIOH' of Supbeme Cotjbt.</p> <p>As this action does not relate to a franchise or freehold and as no money judgment was rendered, and the construction of a constitutional provision not being necessary to a determination of the case, this court is without jurisdiction to entertain it upon error to the court of appeals.</p> <p>2. Same.</p> <p>Plaintiff sued defendants for damages for illegal arrest and false imprisonment; judgment in the district court for defendants which was affirmed by the court of appeals: held, this court is without jurisdiction to review the latter judgment.</p> <p>3. Same.</p> <p>Rules of pleading and practice are generally subject to change by the legislature. Their violation does not present a constitutional question authorizing this court to take jurisdiction.</p>

Plaintiee iu error, as plaintiff below, alleges in his complaint : “ 1st. That' defendants are copartners, doing business as Hall Bros. “ 2d. That on or about the 15th day of September, 1884, the plaintiff made a contract with the defendants to purchase an undivided one eighth interest in a certain herd of cattle. known as the Wilcox herd of cattle, and certain lands, which said herd of cattle and lands were purchased by defendants, together with other persons, oE said…

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

<p>1. County Court’s Jurisdiction.</p> <p>The jurisdiction of the county court is limited to cases in which the debt, damage or claim or value of the property does not exceed two thousand dollars, except in cases relating to the estate of deceased persons.</p> <p>2. Immaterial Error — Waiver.</p> <p>Error, if any there be, in changing the venue from the county to the district court, on the ground that the amount in controversy as claimed by respondent exceeds $2,000, is waived where the parties appear generally in the latter court, amend their pleadings, and go to trial without objection.</p> <p>3. Eminent Domain — Form oe Report or Verdict.</p> <p>The provisions of the statute as to what shall be contained in the report of commissioners or the verdict of a jury in eminent domain proceedings are mandatory.</p> <p>4. Same — Additional Deposit.</p> <p>Where the petitioner in condemnation proceedings desires to occupy and use the premises pending appellate proceedings, it is proper to order an additional deposit sufficient to cover the amount of the compensation ascertained and awarded.</p>

This is a contest between Edward Id. Collins, a grantee claiming under a tax deed executed by the county treasurer and A. B, Sullivan et al., grantees of the owner at the time of the tax levy. The property was sold for taxes for the year 1876. As listed for taxes for that year, it is described as lot five (5), block one hundred and forty-four (144), East Denver, Arapahoe county, Colorado, and by this description is conveyed by the treasurer’s deed.

This action was originally brought by Jesse R. Jackson, in the district court of Arapahoe county, against N. G. Burnham, to recover damages for malpractice.

Hrror to the District Court of Jefferson County. In the court below a demurrer to the original complaint was sustained, and the plaintiff filed his amended complaint, of which the following (omitting the formal parts) is a copy: “ That the said defendant is a corporation duly organized under the laws of the state of Colorado, and doing business in the county and state aforesaid; that said company was organized on or about the first day of April, A. D. 1874; that the purpose…

¡Error to the County Court of Arapahoe County. The plaintiff in error was found guilty in the police court of the city of Denver of the violation of an ordinance of said city which prohibited the distributing of handbills and circulars upon the streets. He appealed to the county court of Arapahoe county, and upon trial there, before the court and a jury, was also found guilty and sentenced to pay a fine of three dollars and costs of the prosecution.