Volume 21 — Colorado Court of Appeals Reports

<p>Appeal from the Denver District Court. Hon. Samuel L. Carpenter, Judge.</p>

<p>1. Appeals — What Matters Are Part of the Record. Certified copies of certain former decrees and orders of the District Court, found in the transcript of the record, and appearing to have been inserted therein pursuant to an order of that court made during the trial, permitting appellant “to supply” such copies, held to be properly sent up as part of the record.</p> <p>2. Water Rights — Adjudications of Priorities — Judicial notice of Prior Decrees. In a statutory proceeding to adjudicate priorities to the use of water, the court takes notice of all its former adjudications, touching the waters of the same district.</p> <p>3. Decree — Conclusive Effect. Where the time for assailing a decree adjudicating priorities, under the statute, has passed without appeal, objection or exception taken thereto, an attack thereon by one who was party to the proceeding must, to be successful, he based upon something occurring subsequent to the last decrees, and upon issues properly joined.</p> <p>A decree which assumes to subordinate a senior priority already adjudged, to a junior priority in the same district, both relating to the same water, will be reversed,</p> <p>4. -Purposes of Adjudication. A decree entered prior to the taking effect of the act of July 11, A. D. 1903 (Laws 1903, c. 130; Rev. Stat., §§ 3280-3283), and which assumes to award and settle priorities to the use of water for purposes other than irrigation, is beyond the jurisdiction of the court, and void.</p> <p>5. -Decree Exceeding Prayer of Petition. A decree which goes beyond the prayer of petition is erroneous.</p> <p>6. -Decree — Certainty Required. A decree which assumes to award a priority to the use of water both for irrigation and domestic purposes, and “for other beneficial uses,” not specifying what is intended by the phrase quoted, nor what amount of water the party is entitled to for either or any of the various purposes specified, is bad for its uncertainty.</p>

<p>Appeal from Larimer District Court. Hon. Christian A. Bennett, Judge.</p>

<p>1. License — Parol Executed. A license to do an act on the licensor’s land becomes irrevocable by the execution thereof.</p> <p>2. Damages — Measure of. In an action for the wrongful destruction of a flume, part of an irrigating ditch, the purpose of the wrong doer being to revoke a parol license previously granted to construct it, and the destruction of the flume, rendering a considerable portion of the ditch valueless, the plaintiff is to be allowed not merely the cost of replacing the flume, but the immediate and direct damage sustained, in respect both the flume and the ditch, or any part of the ditch.</p> <p>3. Duty of Plaintiff to Minimize — Burden of Proof. ' In an action for a tort the burden of proving that plaintiff might by reasonable effort have reduced the loss which he has sustained is upon the defendant.</p>

<p>1. Judgment — Signature of Judge — Unnecessary.</p> <p>2. - Gan Only Be Rendered in Term Time. Save as authorized by express statute, a final judgment or decree can be rendered only by the court in term time. Neither sec. 1491, 1492, Rev. Stat., nor sec. 408 of Mills’ Code is an authority for the entry of a judgment in vacation or at chambers.</p> <p>A judgment appearing upon the records of the district court of one county, but which by the same record appears to have been rendered by the judge while at his chambers, in a different county, will be reversed on appeal.</p> <p>3. Appeals — Judgment—Reversed With Directions. The judgment of the district court reversed with directions that upon a new trial the parties be permitted to use the evidence given upon the first trial and produce other evidence. .</p>

<p>1. Quo Warranto — Corporation Organized for Illegal Purpose. A club „ organized ostensibly as a social club, but in fact with the sole purpose to dispense intoxicating liquors, in violation of law and local ordinances, may be dissolved by quo warranto.</p> <p>2. - Who Are Competent as Relators. Resident electors and taxpayers of a city are competent relators in such case. The judge of the proper District Court having allowed them to present the information, their character as citizens and taxpayers need not be proven at the hearing, though denied.</p> <p>3. -Leave to Private Person to Prosecute. And upon refusal of the district attorney to prosecute, on complaint submitted to him, leave to prosecute may by the judge of the proper district court be granted to private persons, without notice to the respondent, or leave to show cause.</p> <p>4. -Judgment. What judgment shall be given depends not upon what is prayed, but upon what is alleged and what is proven.</p> <p>A corporation will be dissolved only for the repeated and willful abuse or misuse of the corporate franchises which are of the very essence of the implied contract between the state and the corporation.</p> <p>The evidence examined and held to establish that the respondent corporation, though organized as a social club, had assumed the corporate form as a fraudulent device and subterfuge, to enable those in control to conduct the illegal sale of intoxicating liquors, and that the place conducted by it was a public nuisance, and a menace to the public peace and good order of the community; therefore judgment of dissolution was affirmed.</p> <p>5. Ckimiktal Law — Bale of Intoxicating Liquors without license is a violation of the law of the state, though the sale be made within the limits of an incorporated city.</p>

<p>Appeal from Denver District Court. Hon. Hubert L. Shattuck, Judge.</p>

<p>Appeal from Larimer County Court. Hon. C. B. Benson, Judge.</p>

<p>Appeal from Denver District Court. Hon. Booth Malone, Judge.</p>

<p>Appeal from Yuma District Court. Hon. H. P. Burke, Judge.</p>

<p>Appeal from Yuma District Court. Hon. H. P. Burke, Judge.</p>

<p>Appeal from Yuma District Court. Hon. H. P. Burke, Judge.</p>

<p>1. Nonsuit — Judgment—What Is. An order of the county court disallowing a claim presented against a decedent’s estate is not a judgment of nonsuit.</p> <p>2. Appeals — County to District Court — Conditions. An appeal lies from an order of the county court disallowing a claim presénted against a decedent’s estate without a prior application to the county court.</p> <p>Nor is such application necessary as a condition precedent to an appeal from the county court to the district court, even from a judgment of nonsuit, or a judgment by default given by the court sitting merely as a court of probate.</p> <p>'3. -Motion to Dismiss — Waiver. Appellee who, in the district court, participates in the trial of a cause pending therein by appeal from the county court, of which cause the district court might have entertained original jurisdiction, waives a prior motion to dismiss the appeal?</p> <p>4. Administration — Exhibition of Claims — Oath of Claimant. Sec. 7217, Rev. Stat., may be complied with by an affidavit made before a notary public of the Indian Territory.</p> <p>5. Affidavit — Title—Venue. An officer of a foreign jurisdiction administering an oath to an affiant is presumed to be acting within the territorial jurisdiction for which he was appointed. That in the caption of the affidavit the venue is laid in Colorado is not sufficient to overcome this presumption.</p> <p>6. Service Rendered — Presumption as to Gratuitous Character. There is no presumption of law that services rendered by a nephew to an uncle are gratuitous. A promise of the uncle to pay for such service may be implied. And the service being requested by the uncle, the fact that the nephew expects a legacy will not defeat his action.</p> <p>7. Appeals — Verdict on Sufficient Evidence will not be reviewed.</p> <p>8. Instructions — Incomplete. An instruction which, though incomplete, is sound in law. as to what is expressed therein, will not reverse, where no modification thereof was requested.</p>

<p>Appeal from Denver District Court. Hon. Carlton M. Bliss, Judge. 1</p>

<p>Appeal from Clear Creelc District Court. Hon. Flor Ashbaugh, Judge.</p>

<p>Appeal from Denver District Court. Hon. Harry C. Riddle, Judge.</p>

<p>Appeal from Pitkin District Court. Hon. John T. Shumate, Judge.</p>

<p>Appeal from Pueblo District Court. Hon. C. S. Essex, Judge.</p>

<p>Appeal from Phillips District Court. Hoñ. H. E. Burke, Judge.</p>

<p>1. Contracts — Construed. The owners of a mining claim executed. a writing, which, after reciting that they were “desirous to sell” the same, and that one Gordon “has agreed to purchase etc.,” contained provisions that Gordon “agrees to pay for said premises” a price named, at certain date set down; that Gordon was to assume possession, and perform certain work of development; promptly pay for all labor and supplies; and report monthly to the representatives of the owners the amount of work done, ore shipped, etc. Held that though Gordon, by the terms of the writing, was required to pay certain royalties upon the ores produced, to be applied upon purchase money, the relation of the parties was that of vendor and vendee and not that of lessor and lessee.</p> <p>2. Mechanics Lien — Development of Mining Claim by Purchaser. Those who under contract with the purchaser of a mining claim, perform work for its development, or for discharging the annual assessment required by act of Congress in case of an unpatented claim, are, under the act of 1899, entitled to a lien for the value of their labor.</p> <p>3. -Posting of Notice. The vendor of a mining claim may by posting the proper notice relieve the premises of any lien on behalf of those who perform development work under contract with the purchaser; but if the contract of sale provides that the purchaser shall post and maintain the notice, he is thereby made the agent of the vendor for this purpose, and his neglect to post the notice is the neglect of the vendor. So that the premises are chargeable with the lien.</p> <p>4. -Judgment. Joint agreement of two for the sale of two mining claims, nothing being said as to how the two are owned. In fact one of the claims is the several property of one of the vendors. The contract stipulates for certain development work to be performed by the purchaser. Work is performed accordingly, tending to the improvement of both claims. Held that a judgment declaring a lien upon both claims for the whole value of the labor, no attempt having been made in the court below to show the benefit to each claim, was not error. The burden to make this showing is upon the land owner.</p> <p>5. -A Lien Against Property Not Chargeable. . A judgment declaring a lien upon three claims, for a gross sum, for which one of the claims is not chargeable Is erroneous.</p>

<p>Appeal from Denver District Court. Hon. George W. Allen, Judge.</p>

<p>Appeal from Washington District Court. Hon. H. P. Burke, Judge.</p>

<p>Appeal from Washington District Court. Hon. H. P. Burke, Judge.</p>

<p>Appeal from Washington District Court. Hon. H. P. Burke, Judge.</p>

<p>Appeal from Washington District Court. Hon. H. P. Burke, Judge.</p>

<p>1. Quieting Title- — To Water Rights. A bill to quiet title to stock in an irrigating company, which entitled the owner to a certain volume of water, entertained.</p> <p>2. -Defendant’s Title. The defendant must not only allege but affirmatively prove his title to the thing in controversy.</p> <p>3. Estoppel — As Between Principal and Agent. One who has sold stock in an irrigating ditch, but retains possession of the certificates and control of the water to which the holder of the shares is entitled, promising the assignee to care for the water until she has occasion for it, will not be heard to plead laches or non-use of the water to bar an action by the assignee asserting his right to the stock and the water.</p> <p>4. Equity — Laches•—Who May Plead. Defendant claiming a volume of water distinct from that to which the plaintiff makes claim is not in position to charge the plaintiff with laches.</p> <p>5. Judgment — Must Rest Upon the Pleadings. No judgment can be given as between the different defendants, where no issue is' made between them.</p> <p>6. Evidence — Who May Object for Incompetency. The plaintiffs united in a bill to quiet title to a water right. The complaint alleged a purchase by Swan as their trustee. The right of the parties was in no way dependent upon whether a trust relation existed or not. Held that defendants were not prejudiced by the admission of incompetent testimony to prove the trust.</p>

<p>1. Fraternal Order — Authority of Local Officers. In collecting and remitting the dues of members the local officers of a fraternal order are the agents of the order, anything in their constitution or by-laws to the contrary, notwithstanding.</p> <p>2. -Benefit Certificate is a policy of insurance.</p> <p>3. -Forfeiture is an odious doctrine, and the courts are alert to seize hold of any circumstance which indicates an intention on the part of a fraternal order to waive a forfeiture of a member’s rights.</p> <p>4. --- Waiver. The acceptance, without objection, from a member, of his assessments for two months, waives any right which the order might have to declare a forfeiture of the policy by an innocent failure to pay in full the assessment for the previous two months, connived at and consented to by the local officers, and the facts in regard to which the association would have known by reasonable diligence.</p> <p>5. Vexatious Appeal — Penalty. A fraternal order appealed from a judgment against it in favor of a beneficiary, which was manifestly just. The appeal was taken against the advice of its counsel, and the judgment and wishes of the local officers. The beneficiary was thus delayed, and put to a needless expense, where no just defense to the claim was possible. The appeal was held vexations'and a penalty of ten per cent, was imposed.</p>

<p>1. Tax Title' — Void Deed — Limitation. A treasurer's deed of lands sold for a tax, showing on its face that the land was struck off to the county on the first day of the sale is void and does not set in motion the short statute of limitations. So where the deed fails to show definitely, the date of the sale or that the lands were re-offered, or that the treasurer was satisfied that no sale could be made to private persons. So where the deed shows upon its face that it was issued upon the assignment of a certificate of sale to the county, made by the treasurer more than three years after the date of the sale.</p> <p>So, it seems, where the deed is based upon such an assignment and fails to show by what officer the assignment was made.</p> <p>So where it shows that non-contiguous lands were sold en masse for a gross sum. So where it fails to show that the ^assignee has paid all accrued taxes, costs, penalties, etc., but only that he has paid subsequent taxes to a certain amount.</p> <p>2. -Nature of the Title. A valid tax deed confers a title paramount to all incumbrances made by the original owner of the land.</p> <p>3. -Limitations — Who May Plead the Statute. One claiming under a void tax deed may not plead the statute of limitations to an outstanding trust deed or mortgage.</p> <p>4. Mortgage — Irregular Foreclosure does not impair the lien of the mortgage. The purchaser at the foreclosure sale stands as assignee of the mortgagee and may redeem the land from a void tax sale.</p>

<p>1. Garnishment — Who May Be Garnished. An administratrix is not liable to garnishee process until final settlement of the estate, or an order of distribution.</p> <p>2. Appeals — Briefs. A brief wbicb attempts to' cite decided cases, without giving the name of the case, or without giving the report in which it is found is a violation of the rule.</p>

<p>1. Specific Performance — Plaintiff’s Performance of Conditions. Purchaser who has failed to pay installments of the purchase money stipulated in his contract of purchase is not in position to enforce specific performance.</p> <p>Even though the vendor has waived the failure to meet such installments at maturity, they must first be paid or tendered.</p> <p>Wrongful entry upon the premises by the vendor or his agent, and dispossession of the purchaser does not change the rule.</p> <p>Nor does a sale of the premises under an encumbrance existing at the date of the purchase, and which - the purchaser assunied.</p> <p>2. - Tender of Payment — Excuses. An alleged conspiracy of vendor and another to exclude the purchaser from the premises, alleged but not established, is no excuse for the omission of the tender.</p> <p>Nor is the defective condition of -the premises known to the purchaser at the time of his purchase.</p> <p>3. -Damages Awarded Against Vendor. Damages are not to be awarded against the vendor in an action for specific performance, unless some change in the title has occurred, rendering specific performance impossible. '</p> <p>4. -• Contract Dependent on Plaintiff’s Performance of a Prior Contract. Purchaser of lands under an executory contract, having agreed with a third person for an exchange of such premises for others, is not entitled to specific performance of the latter agreement, unless entitled to performance of the first.</p> <p>5. Contbact — Consideration—Nudum Pactum. A promise to do what the promissor is already bound in law to do, is no consideration for a promise by the promisee in the first contract.</p> <p>G. Appeal — Judgment. íhe plaintiff in an equity case, successful below, showing no title to equitable relief, the judgment was reversed with directions to the court below to dismiss the bill at plaintiff’s cost.</p>

<p>Tax Title — Void Deed. A tax deed based upon a sale to the county, appearing on the face of the deed to have been made on the first day of the sale, is void.</p>

<p>.1. Coepobation — Contract Ultra Vires. A corporation organized for the sole purpose of dealing in lands, landed securities, negotiable paper and the like has no power to become surety upon an appeal bond.</p> <p>2. Appeal — Bond—Additional Bond Required. Appellant required to execute a new bond in lieu of one by corporation surety having no power to become surety.</p>

<p>Appeal from Summit County Court. Hon. D. W. Fall, Judge.</p>

<p>1. Appeal — Time of Filing Transcript. An appeal to the supreme court is “made,” within the meaning of the Code (Rev. Code, sec. 424) when the appeal bond is filed in the district court; and if there be then thirty days intervening before the next term of the supreme court the appellant must, by the third, day of such next succeeding term of that court, lodge in the office of the clerk of the supreme court a copy of the record of the judgment, unless further time is granted therefor; and upon failing so to do the appeal must be dismissed.</p> <p>That under the orders of the district court the appellant might have delayed the filing of the bond to such time that the copy of the record need not be filed until a subsequent term of the supreme court, or that time was granted by the district court to tender the bill of exceptions at a day long subsequent to the third day of the next coming term of the supreme court, is immaterial.</p> <p>2. -- Doclceting Appeal as a Writ of Error. Under sec. 388a, Mills’ Code (sec. 423, Rev. Code 190S) the supreme court, upon dismissing an appeal merely for a failure to file the transcript in due time, may, where there is an appearance, docket the cause as a writ of error. Taylor v. Colorado Iron Works, 29 Colo. 372, and Bowling v. Chambers, 20 Colo. Ap. 113.</p> <p>By the saving clause of sec. 25 of chapter 6, Laws 1911, the repeal of secs. 423, 424 of the code '(Rev. Code 1908) is without effect as to appeals previously perfected.</p> <p>Sec. 4 of chapter 107 of the Laws of 1911, applies to every case brought to the supreme court by an appeal, whether valid or not, which remained undisposed of when that act took effect. The supreme court were thereby deprived of all jurisdiction save to make the prescribed order of transfer to this court. And such transfer gave to this court no greater jurisdiction than that which could have been exercised by the supreme court, under prior statutes, at the time its jurisdiction was divested. And where such appeal, transferred to this court, is dismissed for the failure of the appellant to file a copy of the record in due time in the supreme court, this court is without jurisdiction to docket the cause as a writ of error, in the absence of a general appearance by the appellee.</p> <p>Where the statute of limitations upon the writ of error has not completed its course, and nothing indicates that the appeal was made for delay, the dismissal will be without prejudice.</p> <p>3. Appearance — General or Special. A motion to dismiss an appeal, under a special appearance, assigning ground, e. g., the failure of appellant to file the copy of the record in due time as required by statute, has not the effect to waive process or the service thereof.</p>

<p>1. Appeal — Time of Filing Transcript. Where in an. appeal to the supreme court the transcript was not filed in that court within the statutory time, and no extension of the time was granted in. that court, the appeal, being transferred to the court, will be dismissed.</p> <p>2. -Docketing in Error. An appeal to the supreme court transferred to this court, the case being one in which no appeal lies, will he dismissed. And the cause will he docketed in error under sec. 424 of the Code, only when the appellee has appeared, or in some manner waived process.</p> <p>3. -Appearance — Special. A special appearance for the purpose of moving to dismiss the appeal is no waiver of process.</p>

<p>Appeal from Archuleta District' Court. Hon. Chas. A. Pike, Judge.</p>

<p>1. Appeals — Objections Not Taken Below. In an action to recover the value of certain cattle killed upon the tracks of a railway, operated both by defendant and another corporation, plaintiff offered to show payment made by defendant to a third person for cattle killed in the same accident with those of plaintiff. The evidence was offered as an admission of liability. On appeal it was urged by defendant that this payment was made in compromise of a disputed liability. This position not' having been taken below, the contention was rejected.</p> <p>2. Evidence — Admissions—By Conduct. Plaintiff’s steer, besides cattle owned by another, were found dead in the early morning, in proximity to a railway, night trains upon which were operated both by defendant and another corporation. There being no evidence that all the animals were killed by any train of defendant, or at the same time, or by the same train, payment by defendant to the other party was held no evidence of an admission of liability to plaintiff.</p> <p>3. -- Letter Failing to Deny an Assertion in That to Which It Replies, may amount to admission. Plaintiff wrote defendant’s claim agent, demanding the value of an animal which the letter asserted had been killed by defendant’s train. The claim agent’s reply was held an implied admission of that assertion. But not of negligence which would charge defendant.</p> <p>4. - Admissions of Agent Affecting Principal. The admissions of the claim agent of a railway company, touching a claim against the company in his hands for adjustment, affect the corporation.</p> <p>5. Negligence' — Not Presumed. In an action for the value of an animal killed by railway train, the plaintiff must prove negligence of defendant in the operation of the train. Proof of the death of the animal, and that it was killed by defendant’s train, raises no presumption of negligence.</p>

<p>1. Pleading — Demurrer—Right to Plead Over. To a counterclaim interposed by defendant the plaintiff put in both an answer and general demurrer, at' the same time. Almost three years later, and in the midst of the trial, this demurrer, being urged by plaintiff, was overruled. Plaintiff then for the first time filed a plea of the statute of limitations. Held that under the circumstances plaintiff had_ no inherent right to plead over; that it would be unreasonable to permit the injection into the defense, at the trial, of a defense which, by the course of pleading adopted, had been clearly waived.</p> <p>2. - Time to Demur. Plaintiff replying to the merits of a counter-claim, so permitting defendant to rest in the belief that only matters of fact will be contested, will not be heard to question the sufficiency of the counter-claim at the trial, or upon appeal.</p> <p>3. Estoppel — By Record. An action against an attorney for negligence admits bis employment, and in resisting a counteiclaim of the attorney, for his fees in the same litigation, the plaintiff will not be heard to deny the employment.</p> <p>4. Attorney — Liability for Negligence. An attorney employed to procure the review of a judgment against his client is liable for moneys paid out by the client, under his advice, for the preparation of the bill of exceptions, if by his neglect the right to an appeal is lost.</p> <p>5. Damages — Remittitur. By a directed verdict a particular amount was allowed to the defendant in the court below, without submitting the same to the jury. Upon appeal it was found that as to this item there was a conflict in the testimony. ■ The cause was remanded with directions to the trial court to allow a remittitur of the amount so in controversy, or that if the successful party should decline to make such remittitur the case should stand for trial as to said amount.</p>

<p>1. Appeal — Second Appeal — Law of the Case. Where upon a second appeal the evidence presented in the records is not materially different from that at the first trial, and the judgment upon such first appeal decides, expressly or by implication, the most, if not all, of the questions presented in the second appeal, the judgment in the first appeal is the law of the case.</p> <p>The transfer of a cause from the supreme court to this court for final determination, pursuant to the act creating this court does not have the effect to elevate this court, pro hac vice to the rank of the supreme court. The doctrine of Brown v. Tourtelott, 24 Colo. 204, has no application. (Walling, J.).</p> <p>2. Pkincipal and Agent — Evidence of Agency. A bank charged with the collection of premiums due to a foreign insurance company permits the agent of the company to make such collection, an authority which the company had refused. The bank thereby constitutes such agent its own agent, and is liable to the insurance company for the collections made by the agent.</p> <p>3. Pleading — Complaint ex Contractu, by principal against agent .to collect, supports a claim for moneys which the agent has negligently allowed another to get into his hands and retain.</p>

<p>Appeal from Pueblo District Court. Hon. C. S. Essex, Judge.</p>

<p>Appeal from Denver District Court. Hon. Harry C. Riddle, Judge.</p>

<p>1. Appeal — Verdict Supported by Competent Evidence, not inherently improbable, or opposed by any physical impossibility presented by the testimony in the case, will not be disturbed.</p> <p>2. Damages — Duty of Plaintiff to Minimize. Trespasser constructs a dam in an irrigating ditch upon the land of another, against the protests and objections of the land owner. When a portion of it is removed he replaces it. Held, that the land owner was not under duty to remove the obstruction, even though it was upon his own land, and his failure to do so was no bar to his action for injuries to his land and the crops thereon, attributable to an overflow caused by the dam.</p>

<p>1. Witnesses — Competency. A stockholder in a corporation is not a competent witness to establish a claim of the corporation against a decedent’s estate. The objection may be taken after the witness is sworn in chief.</p> <p>2. Mortgagor and Mortgagee — Liability of Mortgagor for Tax Paid by Mortgagee. Payment of taxes upon the mortgaged land affords to the mortgagee no action against the mortgagor, in the absence of a covenant to this effect. He must look to the land for reimbursement. The provisions of Rev. Stat., sec. 5704, do not change the rule.</p> <p>A provision in a deed of trust on lands that the grantor in trust shall “pay all costs of this trust including money advanced for taxes,” suffices to give such action.</p> <p>3. Administration — Manner of Exhibiting Claim. Under Rev. Stat., sec. 7212, a claim made by mortgagee against the estate of the mortgagor for taxes paid upon the mortgaged lands, the claim being based upon a covenant in the mortgage, is not sufficiently presented by merely filing the promissory note secured by the mortgage, and the tax receipts, with an affidavit showing where the mortgage is recorded. The mortgage itself must be filed.</p> <p>A promissory note given for the purpose of tolling the statute of limitations upon a previous note need not be filed.</p> <p>The word “collateral” upon the margin of such note is not controlling as to its purpose.</p> <p>4. Evidence — Tax Receipts. One claiming under the covenants of a mortgage exhibited against the estate of the mortgagor a claim for taxes paid. Held that in order to the admissibility of the tax receipts it must appear that they represent money paid by or for the mortgagee for taxes assessed against the identical land described in the mortgage.</p>

<p>Appeal from Gilpin District Court. Hon. Floe Ashbaugh, Judge. ■</p>

<p>Appeal from Denver District Court. Hon. Harry C. Biddle, Judge.</p>

<p>Appeal from Denver District Court. Hon. George W. Allen, Judge.</p>

<p>1. Union Pacific Railway Grant — Title. It seems that the title acquired by the Union Pacific Railway Company to its right of way, under the Acts of Congress (12 Stat., c. 120; 13 Stat., c. ccxvi; 15 Stat., c. xxvii, p. 324) is inalienable, and not subject to be divested by an adverse possession.</p> <p>2. Vendor and Purchaser — Judicial Sale — Title. Where a court, through its receiver or other administrative officer, assumes to sell real property, under circumstances implying the right of the purchaser to demand a good title, the purchaser will not be required to- accept a title which is clearly defective or unmarketable.</p> <p>3. - Contract Construed. A letter proposing to purchase certain real property, from a receiver, enclosed a deposit, and stated that the residue would be paid “as soon as the title is made satisfactory to our attorney.” Held to import as a condition precedent that a satisfactory title must be furnished.</p> <p>And though the purchaser, with the consent of the receiver, assumed possession of the property, and made extensive improvements, and a deed, never accepted, was tendered, no contract was consummated, and the court was without power to require the purchaser to pay the residue of the price offiered, accepting a mere paper title, in direct opposition to the expressed conditions of his offer.</p> <p>4. Courts — Authority. A court has no power to compel one dealing with its receiver to purchase property on conditions differing from those prescribed by the purchaser in his offer of purchase. Such an order made without notice to the purchaser is without effect.</p> <p>5. Order of Court — Construed. An order of court authorizing its receiver to sell and convey certain real property described therein, at private sale, for “not less” than a sum named, “and for as much higher price as is possible to procure therefor,” and to execute a proper deed of conveyance “to be approved by the court before delivery” is not a confirmation of a previous sale alleged to have been made by the receiver, but which in fact consisted of an offer for a satisfactory title, which the receiver was unable to furnish.</p>

<p>1. Will Contest — Depositions. A will being presented for probate, tbe proponent in her petition prayed the removal of' an administrator, already appointed. The removal of the administrator was denied, and an appeal taken to the district conrt from this order. Held that pending this appeal the county court might issue a commission to take the depositions of non-residents attesting witnesses t-o the will. The appeal pending in the district court in no manner affects the jurisdiction of the county court over the proceedings for the probate of the will.</p> <p>2. -Depositions — Construed. An attesting witness examined upon commission deposed that he and the other attesting witness “subscribed the attestation clause,” then before him. Held that his deposition in effect affirmed the truth of such attestation, and was therefore to be construed to import that as thereby asserted the testator was present.</p> <p>3. -Attestation Clause — Effect. The attestation clause of a will declaring that the will was subscribed and attested by the witnesses, in the presence of the testator and of each other, casts upon the contestant the burden of showing the contrary thereof. Such attestation is an implied statement that the testator was of sound and disposing mind.</p> <p>4. -Right to Trial by Jury — Waiver. Where each party requests the court to direct a verdict, the contestor failing to request the submission of any specific issue to the jury, after his request for a directed verdict is denied, waives his right.</p> <p>Error can not be assigned upon the refusal of the court to submit the question to the jury upon the general issue.</p> <p>5. -Directed Verdict. Where -there is no dispute in the evidence, and different conclusions are impossible, the court may direct the verdict. In re Shell’s Estate, 28 Colo. 167, followed.</p> <p>6. Depositions — Variance in Name of Witness. In proceedings for the probate of a will a commission issued for the examination of “C. H. Sorrell,” one of the attesting witnesses. The deposition returned was that of “Charles Henry Sorrell.” It was proven that the witness examined was in fact the same person who attested the will. Held that a motion to suppress the deposition for this variance was properly denied.</p> <p>7. - Official Character of Commissioner — Evidence Required. A commissioner appointed to take the deposition of a non-resident witness thereby becomes an officer of the court from which the commission issues. No evidence that he is entitled to the official designation by which he is described in the commission, or of his authority to administer an oath, is required.</p> <p>8. -- Return — Signature of Commissioner. A commission to take the deposition of a non-resident witness issued to “W. H. Moseley, Justice of the Peace.” His signature to the certificate appended to the deposition returned, “W. H. Mosely, J. P., Commissioner.” is sufficient.</p> <p>9. -Residence of Witnesses. An objection to a deposition that while the witnesses are described in the commission as residents of a city named, it appears by the deposition that such witnesses did not in fact reside at that city, but were merely engaged in business there, is properly overruled.</p>

<p>Appeal from Teller District Court. Hon. W. S. • Morris, Judge.</p>

<p>1. Tax Title — Void Deed. A tax deed showing upon its face that distinct and non-contiguous tracts of land were sold en masse, for one entire sum, and failing tQ show the tax assessed against each tract, is void.</p> <p>2. Judgment — Binds Only the Parties. A decree assuming to quiet title to lands, given in a cause to which only those without title are made parties, and in which those having title according to the public record, are not summoned or made parties, and do not appear, is without effect.</p> <p>3. --- Who May Assail. In a bill to quiet the title to lands the defendant showing no .title will not b,e heard to question the regularity of a foreclosure under which the plaintiff claims.</p> <p>4. Appeal — Harmless Error. Where upon the case shown in the record no other judgment than that given in the court below was possible, the exclusion of immaterial evidence is harmless.</p>

<p>1. Arpeáis — Yerdict on Conflicting Evidence, will not be reviewed.</p> <p>2. Fuatjd — Recission of Contract. Defendants induce plaintiff to pay $2,000 for an interest in a mining enterprise, by false representations, among others, that one of them will invest the same amount. In fact no such investment is intended or made and the check which one defendant executes and delivers to the other is afterwards restored to the drawer and cancelled, and the moneys obtained from plaintiff are divided between the conspirators. Plaintiff is entitled to rescind.</p> <p>3. Accokd and Satisfaction — Release—Effect. A release, or an accord and satisfaction, binds the party only as to causes of action then within his knowledge. Guldager v. Rockwell, 14 Colo. 459, distinguished.</p> <p>4. Instbtjctions — Given in Other Form. The refusal of an instruction, which so far as it conforms with the law is given in other form, is not error.</p>

<p>Appeal from Kit Carson District Court. Hon. W. S. Morris, Judge.</p>

<p>Appeal from Pueblo District Court. Hon. J. E. Bizer, Judge.</p>

<p>Appeal from Boulder District Court. How. Haeey P. Gamble, Judge.</p>

<p>Appeal from Clear Creek County Court. Hon. Walter H. Hobbs, Judge.</p>

<p>Appeal from Weld County Court. Hon. Gr. H. Bradeield, Judge.</p>

<p>1. Appeals — Error Not Affecting Substantial Rights. This court will be governed by the provisions of sec. 20, c. 6, of the Laws of 1911, though directed in terms to the supreme court. A decree by which- substantial justice is meted to the parties will not be disturbed.</p> <p>2. -Abstract. Questions not presented by the printed abstract will not be considered.</p>

<p>Appeal from Otero District Court. How. J. E. Rizer, Judge.</p>

<p>1. Parties — Who Are — Complaint Construed. A complaint naming as defendants “The Board of Directors” of a certain irrigation district, not as such, hut individually, and such directors, and the other officers of the distinct, individually, does not implead the district. Only the individuals named are defendants.</p> <p>2. Judgment — Upon Whom Conclusive. A judgment in mandamus requiring the officers of an irrigation district to issue certain warrants does not conclude the district. The district may contest the validity of the warrants, notwithstanding such judgment.</p> <p>3. Appeal — Where an Appeal Lies• — Money Judgment. A judgment in mandamus against the directors and officers of an irrigation district, individually, requiring them to deliver to the petitioners certain warrants already issued, and to sign and deliver other warrants for sums already passed upon, and to consider and act upon certain other claims, is not a money judgment and no appeal lies therefrom under the Code. (Rev. Code 1908, sec. 422.)</p>

<p>1. Evidence — Must he Confined to the Issues. Action upon promissory notes given for a certain machine. The sale was evidenced by a writing containing certain warranties. At the trial defendants elect to rely upon these warranties for their defense. Representations made prior to the execution of the writing are inadmissible.</p> <p>2. Instbuctions — As to Matters Not in Issue. Instructions submitting to the consideration of the jury matters which by stipulation at the trial are excluded from the issues, are error.</p>

<p>1. Judgment' — Effect of Pending Appeal. A judgment from which, a perfected, appeal is pending is not conclusive of what is therein determined.</p> <p>2. Practice — Two Gases Involving the Same Issues — Judgment and Appeal in One. When of two cases involving the same matters of controversy one has gone to judgment, and an appeal is pending therefrom in the supreme court, the proper practice is to continue the other cause until the determination of the appeal.</p> <p>But the defendant therein is entitled to plead the same defenses set up in the first action.</p>

<p>1. Statute oe Limitations — Presentation of Claim to County Commissioners — Effect. The presentation to the County Commissioners, of a claim against the county, and diligent and active effort by the claimant to induce action by the board, stays the course of the general statute of limitations. Corning v. Ryan, 3 Colo. 525, Morris v. Clark, 10 Colo. 216, Altvater v. Bank, 45 Colo. 528, distinguished.</p> <p>2. -- Waiver of Statute. One who by his conduct induces a creditor to believe that no action will be necessary to enforce payment of the demand, until the statute has completed its course, will not be heard to plead the statute against an action subsequently commenced.</p> <p>3. Counties — Claims Against — Presentation—Duty of County Commissioners. It is the duty of the Board of County Commissioners to consider and allow or reject every claim presented to them, within a reasonable time.</p> <p>4. -Action of Board of Commissioners■ — Effect. The great weight of authority is that such boards act in a judicial capacity, and their allowance or rejection of a claim has the effect of a judgment, unless vacated or reversed in the manner prescribed by law.</p> <p>5. Interest — Is a Creature of Statute, and is not to be allowed upon an unliquidated claim.</p> <p>6. Actions — Defenses—Relation of Defendant tó Third Person. One employed by a county to construct a road, which is the property of a private corporation, is not affected by the relations of trust existing between the county and such corporation.</p>

<p>Appeal from Denver District Court. Hon. Harry O. Biddle, Judge.</p>

<p>1. Fraudulent Conveyance —• Officer Assailing — Evidence. A sheriff who levies an attachment upon chattels found in possession of a stranger to the writ, and defends his levy on the ground that the title of the one so in possession is fraudulent as to the creditor named in the writ, must show not merely a writ regular on its face, but the preliminary steps essential to the lawful emanation of the writ, and that it was issued upon a bona fide existing indebtedness.</p> <p>2. Factoe’s Lien — When and for What It Exists. One who advances money to enable another to purchase horses, under an agreement that the' animals shall be shipped to him for sale, and that from the proceeds of the sale his advances shall be reimbursed, is entitled to a lien, not only for the advances so made, but for expenses legitimately incurred and paid by him in connection with the consignment, the performance of his duties as factor, the preservation of the property, and the preservation of his lien.</p> <p>But the factor’s lien does not come into existence until the goods have lawfully and in good faith come into Ms possession, either actual or constructive.</p> <p>No certain general rule can be derived from the authorities upon the question whether a delivery of goods to a carrier consigned to the factor, confers upon the latter the possession which is essential to the lien.</p> <p>When the goods are delivered to the carrier, pursuant to a previous arrangement and the factor subsequently, pursuant to such arrangement, makes advances on account thereof, it should be held that the lien attached immediately on such advances being made, even though the bill of lading was then still retained by the consignor.</p> <p>And where the animals which were the subject of the transaction had, before any levy thereon, been delivered by the carrier at certain stock yards, and, according-to the custom of business at such stock yards, were in possession of the factor, under a claim of right, it was held that the sheriff, justifying a levy thereon, under an attachment against the consignor, had the burden of showing not only that the factor’s possession was fraudulent as to creditors of the consignor, but also that the attachment was regularly issued and that the plaintiff therein was a creditor of the defendant.</p> <p>3. Evidence — Process—Recitals Therein, are not evidence as against a stranger thereto.</p> <p>4. -Relevancy. In a controversy between an officer representing an attaching creditor and one claiming a lien upon the goods attached, as factor to the defendant in the attachment, the bankruptcy of such attachment defendant has no relevancy to the claim of either party.</p> <p>5. -Presumptions. The factor’s claim of a lien is 'supported by the same presumptions of honesty and good faith which attends other commercial transactions.</p> <p>6. Appeals — Correct Conclusion Upon False Réasoning, will not be disturbed.</p> <p>7. Practice — Directed Verdict — Both Parties Moving for. When both plaintiff and defendant move for a directed verdict, no request being made by either for any special finding, the effect is to withdraw the issue from the jury, and submit it to the court.</p> <p>8. Bankruptcy — Right of Trustee to Litigate in State Courts. The trustee appointed by the court in bankruptcy has the same right to litigate in the state courts, to protect the bankrupt estate, as has any other litigant.</p> <p>But if he seeks to intervene in a pending action to which the bankrupt is not a party, he must show by his allegations the right so to intervene in accordance with the practice of the court wherein such action is pending. And he must show an interest in the subject of the litigation, in common with one of the parties to the action, or adverse to them both, of such direct and immediate character that he will either gain or lose by the . direct legal operation and effect of the judgment.</p> <p>He must allege the adjudication in bankruptcy, and his interest in the subject matter of the action must appear by averment of the facts upon which such interest is asserted.</p> <p>A mere allegation of such interest without any averment of the facts will not be accepted.</p> <p>The allegations of the petition examined and held insufficient, to show any interest in the intervenor.</p> <p>9. Statutes — Construed—Federal Bankruptcy Act, Sec. 67f. The trustee in bankruptcy cannot claim at the same time under both clauses of the section.</p> <p>The first clause contemplates the attachment of property to which the bankrupt has the complete legal and equitable title, which, as soon as the attachment is dissolved passes at once to the trustee, as part of the bankrupt’s estate. When the facts are otherwise, the trustee takes nothing under this clause.</p> <p>And in order to avail himself of the Second clause of the section, he must make it appear by averment that he has been authorized by the order of the court in bankruptcy to preserve the attachment for the benefit of the bankrupt estate.</p> <p>10. Debtor and Creditor — When the Relation Exists — Factor’s Advances.-, A commission merchant makes advances to enable the person receiving them to purchase live stock, to be consigned to the merchant for sale, the advances to be repaid out of the proceeds. He makes other advances for the preservation and protection of the animals. He is not a creditor of his correspondent except to the extent of any deficiency in the proceeds of the sale.</p> <p>11. Pleadings — Construed—Conclusions of Law. Averments that a lien claimed by the adverse party is “null and void,” and “sought and permitted, in fraud of the provisions of the bankruptcy act” is a mere conclusion of law.</p> <p>The trustee in bankruptcy seeking to intervene in a cause in which the plaintiff was claiming a lien for moneys advanced to the bankrupt, before the adjudication, to enable him to purchase live stock, which by arrangement between them were to be, and were, shipped to plaintiff for sale, and for charges and expenses in connection therewith, averred that the bankrupt was insolvent to the knowledge of plaintiff at the time of making the advances, but failed to show any transfer of property by the bankrupt to the plaintiff, or that plaintiff was a creditor of the bankrupt, or had obtained a preference as such over other creditors, Held not sufficient to show that the lien claimed by plaintiff constituted a preference, voidable under the statute.</p>

<p>Appeal from Boulder District Court. Hon. Harry P. Gamble, Judge.</p>

<p>Judgment affirmed on the authority of the Metropolitan Casualty Co. y. Bergheim, No. 3358, ante.</p>

<p>1. Executors and Administrators — Sale of Decedent’s Realty. So long as there is personality sufficient to meet the liabilities of a decedent’s estate, resort may not be had to the realty.</p> <p>A sum of money was paid by the executor of the husband, deceased, to the administrator of the deceased wife. The husband had survived the wife, and inherited one-half her estate. The sole devisee under the will of the husband consented to the payment mentioned, and relinquished all right to share therein. The fund was largely more than sufficient to discharge all the liabilities of the wife, and the expenses of administration of her estate. But the administrator, having distributed the greater part of the fund, then applied for leave to sell the realty left by his intestate, to discharge certain liabilities, principally expenses of administration. It was held, on objection by the devisee of the husband, entitled as jsuch devisee to one-half the lands in question, that she never having consented to the distribution of the fund in question, the administrator’s petition must be denied.</p> <p>King, X, and Scott, P. X, dissented.</p> <p>2. -Petition to Sell Realty, must set forth the facts which make it necessary to resort thereto.</p> <p>3. - Administrator — Duty of One Dealing With. A distributee who has relinquished the right to share in a sum of money-paid to the administrator is not under duty to supervise his action in the application of thé fund. He may- justly assume that he will faithfully discharge the duty imposed upon him by the law.</p> <p>4. Agreement — Understanding of Party. The understanding- of one of the parties to a transaction, not shown to have been mutual, creates no liability on the part of the others.</p> <p>5. Court of Appeals — Jurisdiction—Matters Not in Issue. In an appeal from the decree of the district court directing the sale of an intestate’s lands to pay expenses of administration, this court has no authority to revise the order of the county court making allowances to the administrator for commissions and fees, which appears in the record, merely as a piece of evidence, under which no one is complaining.</p>

<p>Appeal from Denver District Court. Hon. Harry C. Rdddle, Judge.</p>

<p>Appeal from Denver District Court. Hon. Carlton M. Bliss, Judge.</p>

<p>Appeal from Boulder District Court. Hon. Jambs E. Gabbigues, Judge.</p>

<p>1. Jurors — Challenge for Cause• — Discretion of the Court. In the absence of statute, the method and order of procedure in ascertaining the qualifications of veniremen, and disposing of challenges for cause, are commonly in the discretion of the court; but the discretion is not an arbitrary one. A party is not to be unreasonably denied a challenge to which he shows himself entitled. His right in such case is a substantial right which it is not within the discretion of the court to take away.</p> <p>2. - Time of Challenge. Doubted whether a rule of court which requires that the challenge of a particular juror for cause be made at the very time when the ground of challenge becomes apparent, and before proceeding to the examination of another juror, can be sustained.</p> <p>3. -Evidence of Disqualification — Bill of Exceptions — Statements of Counsel. The party • complaining of the denial of a challenge for cause, must make the incapacity of the juror to whom he objects apparent. The mere statement of counsel in making the challenge that he desires the record to show that the juror “on his examination showed that he had served at the last term of the court in this division” has not the effect to introduce into the record the statement of the juror, as a fact. It is to be considered as part of the challenge, and not as evidence of the fact relied upon.</p> <p>The circumstance that the adversary counsel made no objection to the statement of fact in the challenge is immaterial.</p> <p>And so of his expressed consent that the challenge be made and passed upon by the court.</p> <p>While such consent would preclude any objection by his client to an adverse ruling, it is without avail to support the exception of the other- party.</p> <p>4. Appeals — Presumptions. A judgment is not to be reversed unless it affirmatively appears from the record that some substantial right of the party complaining was prejudicially affected by. the ruling complained of. (Mills’ Code, sec. 78, Rev. Code, sec. 84.)</p> <p>5. - Verdict on Conflicting Evidence — Presumption. In the consideration of questions depending upon conflicting evidence the court of review is bound to assume that the jury determined every disputed matter of fact in favor of the successful party; and that all inferences fairly adducible from the evidence were favorable to the same party.</p> <p>6. Evidence — Judicial Notice — Charter of Denver. The courts will judicially notice the charter of the city of Denver, adopted by the people of that municipality March' 29, 1904, to the same extent as the former charter, granted by the legislature.</p> <p>7. Denver — Charter of .1904 — Prior Ordinances. Under sec. 4 of art. XX of the constitution, and sec. 348 of the charter of that city, adopted in 1904, all ordinances in force at the date of the adoption of the new charter, and which were not inconsistent therewith, remained in force until repealed or amended by the council, or until they expired by their own limitations.</p> <p>To receive such prior ordinance in evidence, in an action for negligence founded on the disregard of the requirements of the ordinance, is not to give it retroactive effect.</p> <p>8. Negligence — Violation of Penal Ordinance as Affording a Civil Action. That a municipal ordinance regulating the operation of street railway ears imposes a penalty for its violation is no ground to exclude it in an action for negligence in disregarding its requirements.</p> <p>9. Contributory Negligence — Burden of Proof, rests upon the defendant.</p> <p>10. - Question for Jury. Before a non-suit can be ordered, or a verdict in favor of defendant directed, on the ground of contributory negligence, it must appear from the evidence, considered in the light most favorable to plaintiff, in which it can reasonably be considered, that ‘the injured party was guilty of negligence contributing to the injury, and without which it would not have occurred.</p> <p>Where the evidence is in conflict the case must go to the jury.</p> <p>11. -- Conduct of Defendant to .Be Considered. In an action for a personal injury, attributed to the negligence of the defendant, the defense being contributory negligence, the jury should take into account the evidence as to the conduct of the defendant and consider whether it might not have misled the plaintiff, or had the effect to lull him into a false security.</p>

<p>1. Contributory Negligence — Imputed. Where one riding as a mere guest in the vehicle of another, having no control over his conduct and being under no duty to control it, having no reason to anticipate any want of care or skill on his part, is injured by the concurring negligence of such driver and a third person, the negligence of the driver is not imputed to the guest.</p> <p>But the guest may not negligently omit to 'exercise his own faculties and trust entirely to the vigilance, of the driver. If he observes, or in the exercise of common prudence should have observed, an impending danger, he is negligent if he fails to give warning thereof to the driver.</p> <p>The question of what is required of the guest in such case is a question of fact for the jury, in view of the situation and all the attending circumstances.</p> <p>The evidence examined and held sufficient to acquit the plaintiff of contributory negligence.</p> <p>2. Instructions — Oral. One of the jurors, by interruptions to counsel during the argument, and by propounding questions to counsel, gave indications of having formed an opinion of his own, independent of the testimony of witnesses. An admonition orally addressed by the presiding judge to the jury to the effect that they must be controlled by the evidence, not substituting their own judgment or impressions, was held not within the code provision requiring the charge to be in writing (Rev. Code, Sec. 204), and if for any reason erroneous, cured by the provisions of the code (Rev. Code, Sec. 84), and sec. 20, c. 6, Laws 1911.</p> <p>3. New Tkial — Misconduct of Juror — Waiver of Objection. Misconduct of a juror, if known to counsel, should be made the ground of objection at the time, and before the cause is submitted.</p> <p>If first suggested in the motion for a new trial it is within the discretion of the" court to disregard it.</p>

<p>1. Appeals — Abstracts and Briefs — Unnecessarily Voluminous, condemned as retarding the progress of the courts, without advancing justice.</p> <p>2. - What May Be Assigned, for Error. One who prays an instruction that particular evidence he considered by the jury for a limited purpose cannot assign error upon its admission.</p> <p>3. -- Harmless Error. An instruction to the effect that an admission contained in the answer is competent evidence against the. defendant is harmless, where the defendant as a witness on the stand makes the same admission.</p> <p>4. Maxims — Stare Decisis, applies in its fullest sense only where property rights are involved.</p> <p>5. Pleadings — Answer—Inconsistent Defenses. The code (Sec. G5) is not to be so construed as to permit the «defendant to plead defenses so contradictory that the proof of one necessarily disproves the other.</p> <p>Cunningham, J.</p> <p>6. Evidence — Admissions in Pleading. The unqualified, admission by the answer of an allegation in' the complaint is evidence ,of what is so admitted, even where the answer contains a general denial. But it seems such admission is not conclusive upon the defendant, but is to be considered in connection with all the other evidence in the case bearing upon the question.</p> <p>Cunningham, J.</p> <p>7. Libel — Answer. The defendant may plead the truth of the alleged libel or that it was a privileged communication, without admitting the publication.</p> <p>8. --- Privileged Communication — Abuse of Privilege. The</p> <p>president of a mining company made a report to the company, in which, alluding to an action previously instituted by the plaintiff against the corporation, for an alleged personal injury, he denounced her as a blackmailer, declaring in substance that she ought to be sent to the penitentiary, that a prosecution against her ought to-be commenced and thoroughly pressed, as a deterrent to fraudulent claims by other blackmailers. He mailed one copy of this report to the secretary, and one to the attorney of the company. It was circulated in pamphlet and published in a daily newspaper having a circulation of many thousands. The evidence warranted the jury in finding that defendant was responsible for the wide publicity given to his defamatory language. Held an abuse of privilege.</p>