Volume 24 — Colorado Reports

This is ail action brought by the appellee against the appellant upon certain coupons aggregating the sum of $6,400, and being for interest on certain bonds issued by Lake county on the 2d day of January, 1882. The complaint in substance avers: That on the first day of January, 1882, one Thomas Corbett was the owner and holder of certain warrants of the county of Lake, which were in amount, number and date as follows: No. 484 for the sum of $589.12, dated July 17, 1879.

On the 80th day of July, 1891, Herbert D. Wellington executed to Tanquary & Gibson, seven promissory notes, of $1,000 each; and to secure the same, executed to John T. Gibson deeds of trust upon certain lots in the city of Denver.

This is an. action by William Barth to set aside a trustee’s sale to W. N. Coler, Jr., made by Walter O’Malley, as trustee, and to cancel the trustee’s deed, upon the grounds that the deed was fraudulently procured and executed, that there was no authority for the sale, and that the conveyance was not made to the highest bidder.

This action was instituted by George E. Ross Lewin, as trustee, and The First National Bank of Denver, plaintiffs, against The Germania Life Insurance Company, of the city of New York, defendant, to recover upon a policy of insurance upon the life of Jacob Boehm for the sum of $30,000.

<p>Collateral Attack—Res Judicata—Jurisdiction.</p> <p>Where a judgment is presented to a court for affirmative action (as in mandamus to compel the levy of a tax to pay it), the court is not authorized to go behind it for the purpose of examining the validity of the cause of action upon which it was entered. Upon this issue the judgment is res judicata. In such a case, although the construction of a provision of the constitution may have been necessary to a determination of the original action, that question is not so involved in the proceeding to enforce the judgment as to give this court jurisdiction to review the mandamus proceedings.</p>

The defendant was convicted upon a charge of assault with intent to rob, and sentenced to confinement in the penitentiary for the term of two years and six months.

In 1880 there were located in what was then Gunnison County, Colorado, two mining claims; one, the “Little Giant,” in January, the other, the “Bonnybel,” in July. By an act of the legislature becoming operative May 28, 1881, that portion of Gunnison county in which these properties were situate became a part of Pitkin county. The two claims overlapped, so that there was common to both a triangular strip of ground of about three acres.

Osr December 26, 1889, the defendants gave to W. R. Frisbie an option to buy for $12,000, 1120 acres of land in Boulder and Gilpin counties, Colorado, which was supposed to contain valuable deposits of gold ore susceptible of extraction by placer mining. The payments were to be made as follows: $2,500 on or before January 1, 1890; $1,500 on or before July 1,1890; $2,000 on or before January 1,1891; $3,000 on or before July 1, 1891; $3,000 on or before January 1, 1892.

<p>1. Jurisdiction.</p> <p>This court has jurisdiction, upon writ of error, to review a judgment of the court of appeals reversing the judgment of a county court.</p> <p>2. Appellate Practice.</p> <p>There is no requirement by statute or court rule that in order to obtain a review of a judgment of the court of appeals, the party aggrieved must object to the judgment when it is announced or that exceptions to the decision must be taken or preserved by bill or otherwise.</p> <p>3. Same — Court Rule—New Assignments op Error, "When Required.</p> <p>It is provided by Rule Í1 of this court that in cases brought into this court by appeal from or writ of error to any final judgment of the court of appeals, no additional abstracts will be required, unless by special order in particular eases ; but a transcript of the record, with a new assignment of errors, and briefs, shall be filed within the same time as in cases brought up for review from other courts; and in general, the procedure shall be the same in all cases, irrespective of the court rendering the judgment soughtto be reviewed.</p>

<p> Hrror to the Oourt of Appeals. </p>

<p>Appellate Pbactice—Motion to Aefibm.</p> <p>Where all the assignments of error were predicated upon matters preservable only by bill of exceptions, and that which purported to be a bill of exceptions has been stricken from the files for want of proper authentication, the judgment may be affirmed upon motion.</p>

<p> Error to the Court of Appeals. </p>

This is an action brought by Samuel N. Farris, plaintiff in error, against F. H. Strong and Stewart McDougal, defendants in error, to procure a rescission of a certain contract and cancellation of a deed executed in pursuance thereof, upon the ground of fraud.

<p> Error to the Court of Appeals. </p>

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

Frror to the District Court of Fremont County. Dependants in error, as plaintiffs below, allege in tlieir complaint, that they are the owners of certain coal lands situate in Fremont county, state of Colorado.

<p> Error to the Court of Appeals. </p>

On the tenth clay of October, 1893, the board of county commissioners of La Plata county passed “The Annual Appropriation Resolution,” for that county for the fiscal year 1894. By this resolution eighty per cent of the revenue to accrue from the annual tax levy, made at this same meeting of the hoard of county commissioners was appropriated and set apart for certain, specific purposes.

<p>1. Amendments.</p> <p>Nineteen months after answer filed, the defendants lodged with the clerk an amended answer setting up as additional matter a plea based on the statute of limitations which, on motion, was stricken from the files. Subsequently an application to refile the same was denied. Held, that the rulings were right, because there was no showing why that defense was not included in the original answer, because that defense was not well pleaded—there being no allegation that the possession and payment of taxes relied upon was for five successive years, and because the defense of the statute of limitations is not usually permitted to be set up for the first time in an amended pleading.</p> <p>2. Practice—-Objections.</p> <p>It is too late to object on appeal for the first time that evidence was admitted on an issue which had been eliminated from the case by striking the pleading tendering it from the files.</p> <p>3. Same—Striking out Evidence.</p> <p>When evidence has been admitted under a promise to introduce other proof showing its materiality and there is a failure to produce that which was promised, it should be stricken out.</p> <p>4. Same—Instructions.</p> <p>Instructions inapplicable to the case made by the evidence should be refused.</p> <p>5. Same.</p> <p>Instructions referring to “the requirements of law” and “conditions precedent ” without defining such requirements and conditions are calculated to confuse the jury and are erroneous.</p> <p>6. Same.</p> <p>1$ is error to instruct the jury in an ordinary action for the recovery of real property that they may find against both parties. Such an instruction may be given only in an adverse suit under the acts of congress.</p>

<p>1. Discretion—Prosecution by Plaintiff as a Poor Person.</p> <p>It is discretionary witli the trial court whether the plaintiff may prosecute his action as a poor person without security for costs.</p> <p>2. Same—Notice of Motion.</p> <p>The trial court may grant leave to the plaintiff to prosecute as a poor person on application without notice.</p> <p>3. Practice—Jury Trial in Equity Oases.</p> <p>Neither party is entitled to a jury trial in an equity case as a matter of right, but the court may call a jury to aid it in passing upon questions of fact. In such a case the verdict is merely advisory. Irregularities in the summoning or impaneling of the jury are not assignable as error.</p> <p>4. Same.</p> <p>There is no merit in an application to set aside a special venire served by the sheriff on the ground that the coroner should have served it, when .the showing in support thereof was not made until after the venire had been served, and there is an absence of showing that any of the jurors were objectionable or that the party complaining exercised the right of peremptory challenge.</p> <p>5. Immaterial Error.</p> <p>An erroneous but unprejudicial exclusion of competent evidence does not necessarily warrant a reversal.</p>

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

This is an action brought for the use of Pueblo county, against Wilson P. Gartley, as principal, and J. B. Orman, William Crook, W. PI. Anderson and A. M. Pryor and others, as sureties upon his official bond, as county treasurer of Pueblo county.

<p>1. State Univebsity.</p> <p>The location of the state university is, hy the constitution, established at Boulder, and cannot he changed except by constitutional amendment.</p> <p>2. Same.</p> <p>Except as limited by the constitution, the general assembly has power to alter or take away the rights and franchises of the state university.</p> <p>3. Ebanciiises.</p> <p>Grants of rights and privileges by the sovereign authority to corporations are, when accepted, franchises.</p> <p>4. Quo Wabbanto—Distbict Attobney—Relatos.</p> <p>The district attorney may institute proceedings in the nature of quo warranto upon his own responsibility, and, if upon request he refuses so to do, a private person, as relator, may in a proper case institute them without leave of court. After complaint filed by a private person, as relator, it is the duty of the court to determine whether he had a right to commence the proceedings or has a right further to maintain them.</p> <p>5. State Hnivebsity.</p> <p>The regents of the state university have no power to maintain the medical department of the university at any place other than at Boulder.</p>

<p> Original Proceeding. </p> <p> Application for a writ of Certiorari. </p>

<p> On Removal from the Court of Appeals. </p>

On February 21, 1893, William B. Norton commenced this action against Fenno Wakeman in the district court of Dolores county.

This action was originally instituted against appellant and one L. A. Dunham, to recover the sum of $500 with interest and protest fees upon a draft drawn by Dunham upon appellant Posey, which draft was cashed by appellee, The Denver National Bank. No service was had upon Dunham, and he did not appear.

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

<p>1. Jurisdiction.</p> <p>A question of statutory construction—as whether a statute has been repealed by implication—cannot give this court jurisdiction to review a judgment of the court of appeals.</p> <p>2. Practice.</p> <p>Although the objection that a complaint does not state facts sufficient to constitute a cause of action may be made at any time, yet if raised for the first time in an appellate court, it is not favored.</p> <p>3. Same.</p> <p>If the facts alleged with all reasonable deductions that can be made therefrom are sufficient to show a cause of action, the complaint will be upheld on review; otherwise not. This complaint held fatally defective.</p> <p>4. Injunctions to Restrain Collection oe Revenue.</p> <p>Injunctions to restrain the collection of the public revenue are not far vored. That a tax is void is not, of itself, sufficient to justify the granting of a writ to restrain its collection. The case must, in addition, be made under some of the well recognized heads of equity jurisdiction.</p> <p>5. Pleading.</p> <p>If part of the tax the collection of which is sought to be restrained, is legal and part void, the pleader must state facts showing what is legal and what void and the payment or tender of the amount legally due. An allegation that he has paid all taxes legally assessed is not sufficient, for this is a mere legal conclusion.</p> <p>6. Same—Irreparable Injury.</p> <p>An allegation in a complaint for injunction that if the defendant be permitted to do the acts sought to be restrained, “ it will work a great and irreparable injury to the plaintiff,” is not a statement of fact, but of a mere conclusion of the pleader and insufficient for any purpose.</p>

<p>Jurisdiction.</p> <p>Tliis court has no jurisdiction to review a judgment of the court of appeals given on error to a district court, when the controversy between the parties is merely a question as to .the priority of their respective liens upon real property.</p>

Appellee in her amended complaint alleges that the defendant is a religious corporation organized and existing under the laws of the state of Colorado; that between the 1, day of July and the 1, day of November, 1892, the plaintiff advanced to the defendant the sum of $8,000 at the special instance and request of the defendant; and that the money was laid out and expended for the use and benefit of the defendant.

<p> JError to the District Court of Huerfano County. </p>

<p>1. Insurance—Change oe Beneficiary.</p> <p>Unless tlie power to change the beneficiary under a policy issued by a mutual benefit association is expressly given, either by the policy or by the articles or by-laws of the association, the beneficiary acquires, upon the issuance and delivery of the policy a vested and irrevocable interest therein.</p> <p>2. Same.</p> <p>The rules and regulations of a mutual benevolent insurance association are not to be construed, so as to defeat the purposes for which the order was organized, unless their meaning is so clear as to admit of no other reasonable construction.</p> <p>3. Same.</p> <p>The provisions contained in the articles of incorporation, by-laws, etc., of The Locomotive Engineers Mutual Life & Accident Insurance Association are considered, and it is held that a member cannot appoint as a beneficiary one not within the classes specified as being entitled to its benefits.</p>

The opinion is in response to the following communication and interrogatories from the governor, to which was attached senate bill No. 80 section 3 which reads as follows: “ Section 3.

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

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

This is an action brought by Alexander Laughlin, plaintiff below, against the city of Denver, defendant below, to recover possession, or the value, of certain real estate, alleged to have been wrongfully entered upon and appropriated by the defendant. Trial to the court; judgment in favor of defendant.

Drror to the District Court of Cheyenne County. The plaintiff in error was informed against for the larceny of 841 sheep, of the value of f 2.50 each, the property of one J. 0. Dostal; was convicted and sentenced to the penitentiary for the- term of eighteen months. To reverse tins judgment he brings the case here on error.

<p> Appeal from the District Court of Arapahoe County. </p> <p>On motion to dismiss.</p>

<p>Jurisdiction-.</p> <p>A controversy as to which of two deeds of trust upon the same real estate constitutes the prior lien does not so relate to a freehold as to give this court jurisdiction to review a decree determining the question.</p>

<p>Election Law—Cebtificates of Nomination.</p> <p>A petition or certificate of nomination of S. as a candidate for the office of district attorney, signed by the requisite number of electors, contained the names of eight persons to represent the signers to fill a vacancy, if any should occur. S. resigned the nomination on condition that R. should be substituted in his place. Afterwards and at a meeting of the committee, seven of the eight members accepted the resignation of S. and appointed R. to fill the vacancy. Thereupon the certificate of R.’s nomination and his acceptance was filed in the proper office. Subsequently five of the committeemen, without a meeting but acting separately and apart, attempted to undo the nomination of R. by the nomination of another person. Meld, that the power of. the committee was exhausted by the nomination of R. and his acceptance thereof.</p>

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

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

<p>1. Pabtnebship—Tbijsts—Evidence—Statute op Fbauds.</p> <p>Title to real estate purchased by a member of a firm in connection with the firm’s business and with partnership assets is held in trust for the firm, notwithstanding he may have taken it in his own name. Parol evidence is admissible to show the trust. The statute of frauds is not applicable to such a case.</p> <p>2. Same.</p> <p>An interest acquired by a tenant in common by purchase of an outstanding title or by redemption from a foreclosure of the common property inures to the benefit of his cotenants upon contribution by them of their proportionate part of the price.</p>

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

<p>Error to the District Court of Arapahoe County.</p> <p>This is an action brought by The American Refrigerator Transit Company, the defendant in error, to have a certain tax declared null and void, and to restrain plaintiff in error, as treasurer of Arapahoe county, from collecting the same. The receiver of The Union Pacific, Denver & Gulf Railway Company, in pursuance of the requirements of section 1 of the Session Laws of 1891, pp. 290-291 {see. 3804 Mills’ Ann. Stats.), reported to the state hoard of equalization that he had in use on the line of railway operated by him, during the year ending December 31, 1894, forty-two refrigerator ears belonging to defendant in error; and thereupon the state board of equalization assessed to defendant in error said forty-two ears, at a valuation of $250 each, or a total valuation of $10,500 ; and distributed said assessment to the different counties through which the line of railway extended upon which said cars were used, according to the mileage in said counties respectively; that of such assessment, $750 was distributed to Arapahoe county. The county assessor of Arapahoe county made out a tax list based on such assessment, and delivered said list to plaintiff in error, as county treasurer of said county, with his warrant attached thereto for the collection of the sum of $21.68, being the amount of taxes so assessed against plaintiff; which amount the plaintiff in error was proceeding to collect, by distraint and sale of the property of defendant in error. The cause was tried to the court upon the following agreed statement of facts:</p> <p>“ Upon the issues made by the pleadings in this case, it is stipulated as follows, viz :</p> <p>“ First. That plaintiff is and was during the times mentioned in the petition a corporation duly organized and existing by virtue of the laws of the state of Illinois, with its principal office in the city of East St. Louis, in said state ; that it is engaged in the business of furnishing refrigerator cars for the transportation of perishable products over the various lines of railroads in the United .States ; that these cars are more expensive than the ordinary box or freight cars; that the cars herein referred to are the sole and exclusive property of the plaintiff; and that the plaintiff furnishes the same to be run indiscriminately over any lines of railroad over which shippers or said railroads may desire to route them in shipping, and furnishes the same for transportation of perishable freight, upon the direct request of shippers or of railroad companies requesting the same on behalf of shippers, but on the responsibility of the carrier and not of the shipper; that as compensation for the use of its cars plaintiff receives a mileage of three fourths of a cent per mile run from each railroad company over whose lines said cars are run, such rate of payment being the same as is paid by all railroad companies to each other for the use of the ordinary freight cars of each when used on the lines of others in the exchange of cars incident to through transportation of freight over connecting lines of railroads; that plaintiff has no, and never has had, any contract of any kind whatsoever by which its cars are leased, or allotted to, or by which it agrees to furnish its ears to, any railroad company operating within the state of Colorado ; that it has, and has had during said times, no office or place of business, nor other property than its cars within the state of Colorado, and that all the freight transported in plaintiff’s cars in or through the state of Colorado, including the ears assessed, was transported in such cars either from a point or points in a state of the United States outside of the state of Colorado, to a point in the state of Colorado, or from a point in the state of Colorado to a point outside of said state, or between points wholly outside of said state of Colorado, and said cars never were run in said state in fixed numbers nor at regular times, nor as a regular part of particular trains, nor were any certain cars ever in the state of Colorado except as engaged in such business aforesaid, and then only transiently present in said state for such purposes.</p> <p>“ That owing to the varying and irregular demand for such cars, the various railroad companies within the state of Colorado have not deemed it a profitable investment to build or own ears of such character, and therefore relied upon securing such cars when needed from the plaintiff or corporations doing a like business.</p> <p>“ That it is necessary for the railroad companies operating within the state of Colorado, and which are required to carry over their lines perishable freight, such as fruits, meats, and the like, to have such character of cars wherein they can safely transport such character of freight.</p> <p>“ Second. That the average number of cars of the plaintiff used in the course of the business aforesaid within the state o’f Colorado during the year for which such assessment was made, would equal forty, and that the cash value of plaintiff's cars exceeds the sum of $250 per car, and that if such property of the plaintiff is. assessable and taxable within such state of Colorado, then the amount for which such cars, the property of the plaintiff, is assessed by said state board of equalization, is just and reasonable, and not in excess of the value placed upon other like property within said state for the purposes of taxation.</p> <p>“ Third. That said company is not doing business in this state except as shown in this stipulation and by the facts admitted in the pleadings.</p> <p>“ Fourth. That in case it be found by the court under the undisputed facts set forth in the pleadings and the facts herein stipulated, that the authorities of the state of Colorado, under existing laws, have no power to assess or tax the said property of plaintiff, then judgment shall be entered herein for the plaintiff for the relief prayed, otherwise judgment shall be entered for the defendant.”</p> <p>The following constitutional and statutory provisions are referred to in the opinion.</p> <p>“ All corporations in this state, or doing business therein, shall be subject to taxation for state, county, school, municipal and other purposes, on the real and personal property owned or used by them within the territorial limits of the authority levying the tax.” State Const, sec. 10, art. 10.</p> <p>“Section ¿765 (Mills’ Ann. Stats.). All property, both real and personal, within the state, not expressly exempt by law; shall be subject to taxation. * * ® ”</p> <p>“ Sec. 3804. * * * It shall be the duty of said board (the board of equalization) to assess all the property in this state owned, used or controlled by railway companies, telegraph, telephone and sleeping or palace car companies. * * * ”</p> <p>“ Sec. 3805. The president, vice-president, general superintendent, auditor, tax-agent, or some other general officer of such railway, sleeping or other palace, or telegraph or telephone company or corporation, owning, operating, controlling or having in its possession in this state any property, shall furnish said board, on or before the fifteenth day of March in each year, a statement signed and sworn to by one of such officers, and showing in detail for the year ending on the thirty-first day of December preceding. * * * ”</p> <p>“ Fifth. A full list of rolling stock belonging to or operated by such railway company, setting forth the number, class and value of all locomotives, passenger cars, sleeping ears or other palace cars, express cars, baggage cars, mail cars, box cars, cattle oars, coal cars, platform cars, and all other kinds of cars owned or used by- said company. The statement shall show the actual proportion of the rolling stock in use on the company’s road, all of which is necessary for the transportation of freight and passengers, and the operation of the road within the state during the year for which the statement, is made. The said statement shall also show the actual proportion of rolling stock of said company used upon leased lines and lines operated with others within the state, the mileage so leased and operated and the location thereof. * * *</p> <p>“Seventh. * * * Whenever it shall' be found that one corporation uses or controls any property belonging to or owned by another corporation, said board may assess such property either to the corporation using or controlling the same or to the corporation by which it is owned or to which it belongs. But every such corporation shall, in the statement to said board, set forth what property belonging to or owned by any other corporation is used or controlled by the corporation making the statement.”</p> <p>The court below found the issues in favor of the company, and rendered a decree granting the relief prayed for. To reverse this decree the treasurer brings the case here on error.</p>

Jdrror to the District Court of Arapahoe County. The information in this ease is for conspiracy. Upon this the defendant was tried, convicted and sentenced to ten years in the penitentiary. To reverse this judgment, the case is brought here upon error.

<p>1. Elections—Review—Practice.</p> <p>The proper practice to invoke the jurisdiction of the supreme court to review judicial proceedings under the act of 1897 determining the validity of a certificate of nomination to office, is by motion on petition and notice.</p> <p>2. Same—Jurisdiction.</p> <p>The decision of the filing officer as to formal matters in a certificate of nomination is final, hut it is not so as to matters of substance. His decisions of the latter class are reviewable by lower courts, and when reviewed by a lower court in the manner prescribed by the 1 statute, the decision of such lower court is final,—subject only to the power of the supreme court, in its discretion, to review summarily the judicial proceeding below.</p> <p>3. Same.</p> <p>A review of suoh decisions in this court should, upon proper application, he entertained where the ruling objected to goes to the jurisdiction of the trial court concerning procedure, and the statutory remedy has been denied.</p> <p>4. Review—Definition.</p> <p>In ordinary signification, review means the judicial examination of the proceedings of a lower court by a higher.</p> <p>5. Same.</p> <p>While a review is usually had upon the record only, it is not necessarily so limited, hut may be so enlarged by explanatory words in the act authorizing it as to embrace the taking of additional evidence or practically to involve a trial de novo. And in this sense is used the word review where it applies to the practice in the nisi prius courts, while as applied to this court it is used in its ordinary signification. If issues of fact are joined, evidence must be heard.</p> <p>6. Same.</p> <p>The rule that an appellate court will not substitute its judgment in place of the finding of the trial court upon conflicting evidence is peculiarly applicable to election cases.</p> <p>1. Elections—Conventions—Powee of Committee.</p> <p>A party convention sat two days, and on the first day it adopted a resolution empowering a committee to nominate a ticket, to nominate which it had assembled; on the second clay, without expressly rescinding the resolution, it proceeded to nominate a full ticket and then adjourned sine die. Held, that the action of the convention on the second day was a revocation of the power delegated to the committee.</p>

<p> Review from the District Court of JEl Paso County. </p>

<p> Original Proceeding on Petition to Assume Jurisdiction under the Statute. </p>

<p> Appedl from the District Court of Larimer County. </p>

This action was instituted by the plaintiff corporation (appellant here) to restrain the defendant water commissioner and the defendant company (appellee) from diverting water from the Cache la Poudre river for the defendant’s North Fork ditch until after the Larimer county ditch, belonging to the plaintiff, received its alleged earlier appropriation.

Proceedings in Disbarment. The attorney general filed an information charging the respondent Horace G. Benson, an attorney of this court, with unprofessional conduct, and praying for his disbarment. Issues of fact were duly joined, evidence taken, and the case thus made has been submitted upon oral argument of counsel. Nominally, four charges are preferred against the respondent.

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

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

<p> Error to Court of Appeals. </p>

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

This is an action brought by the plaintiff, as a resident taxpayer of the city of Pueblo, against the defendants as “ trustees of the Pueblo waterworks ” to j estrain them, as such board, from paying any moneys for the repairs and enlargement of said waterworks under a contract previously made by and between said board and C. P. McCarthy and F. P. Lannon, who are joined as defendants in the action.

<p>1. Mandamus.</p> <p>The writ of mandamus should never go, unless among other things, the following jurisdictional facts are made to appear; first, a clear legal right in the party praying the writ to have the act performedhor which he seeks the aid of the court; second, a clear legal duty on the part of the officer sought to be coerced; third, that the remedy when issued will be effectual as a remedy.</p> <p>2. Same.</p> <p>The writ of mandamus will not go to control judicial discretion, or to compel an inferior tribunal to act in a particular manner, or to enter a particular judgment or order, but only to compel the doing of some act which it is clearly the duty of the lower court to do.</p> <p>3. Evidence—Obdeb of Pkoof.</p> <p>The order of proof is always within the discretion of the trial court, and not subject to review by appellate tribunal except in case of gross abuse of discretion.</p> <p>4. Injunction—Good Eaith.</p> <p>In a suit by a third party to cancel a contract for paving streets, made by a municipality with one of the defendants, on an application for temporary injunction to restrain the carrying out of the contract until final hearing, when the court, from a reading of the complaint, entertained suspicions of a lack of good, faith of plaintiff, it was justified in requiring plaintiff to first show by evidence his good faith in prosecuting the suit before hearing other testimony offered by plaintiff. If the plaintiff was not in good faitli prosecuting the action in las own interest and the interest of other property holders, he was not entitled to the injunction, however strong in other respects the merits of the case.</p> <p>5. Mandamus—Inteblocutoby Pboceedings.</p> <p>The writ of mandamus will never issue when it would he manifestly inoperative, and not usually to review interlocutory proceedings of courts.</p> <p>6. Same—Rulings of Coubt.</p> <p>The rulings of courts upon questions of law or fact arising in a case, or upon questions of practice and rules of court, are not subject to review in a mandamus proceeding.</p>

<p>1. Administration—Statute—Secured Claim.</p> <p>The statute of nonclaims (Mills’ Ann. Stats, sec. 4780) providing that all demands not exhibited within one year shall be forever barred unless the creditor shall find other property of the deceased not inventoried, does not apply to a claim secured by deed of trust.</p> <p>2. Same.</p> <p>Claim presented after one year, if not secured, should be paid pro rata out of property discovered after the expiration of one year, whether discovered before or after the claim was allowed, either by the claimant, the executor, or some other person. If secured by deed of trust, the proper proceeding is to allow a foreclosure and sale of the incumbered property, and if the proceeds are insufficient to pay the claim as allowed, to provide for satisfying the deficiency pro rata out of any property discovered as aforesaid after the expiration of the year.</p> <p>3. Same—Foreclosure.</p> <p>After the expiration of one year allowed for presenting claims against an estate, no order of court was necessary to authorize a claimant to proceed to foreclosure of a deed of trust. The only condition precedent of the right of foreclosure under the law of 1889 was the allowance of his claim. The amendment to that law is not considered.</p>

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

<p> Error to the Court of Appeals. </p> <p> Motion to quash and dismiss writ of error. </p>

This action was instituted by the attorney general on behalf of the people of the state, to obtain a writ of mandamus to compel the assessor to extend the military poll tax for the year 1896, upon the assessment roll of Araphoe county, and also against the treasurer, to compel him to collect this tax. An alternative writ of mandamus was issued, to which separate answers were filed by Willard L. Ames, the county assessor, and Eranlc Hall, the county treasurer.

The plaintiff in his complaint alleges that in the month of August, 1892, and for some years prior thereto, the defendant was engaged in the business of furnishing ties to the Union Pacific Railway Company, under a five years’ contract; that the defendant employed plaintiff in August, 1892, to assist Mm M carrying out the contract, and that by the terms of such employment the plaintiff agreed to keep an account of all ties inspected at various points along the line of the…

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

The opinion is in response to a communication of the governor hi which is propounded this interrogatory: “ In view of the several constitutional and statutory provisions, is it lawful for the hoard of equalization to levy, and of the several county assessors to extend upon the tax rolls, and of the several county treasurers to collect, a special tax sufficient to pay the interest upon the bonded indebtedness of the state, in addition to, and in excess of, the levy of four…

Appellants and appellees are contesting in this action the right to inherit a one-half interest in the property of one David Henry, deceased, who died intestate in tins state on the 24, day of December, 1891, leaving a widow who survived him only eighteen days. This wife died without issue, leaving her mother, Nellie A. Evans, her sole heir.

This is aa action brought in behalf of Catherine M. Holt by C. J. Burns, her guardian ad litem, against J. B. Hindry, to recover damages for the death of Thomas Holt, her uncle.

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

<p>1. Notice—Knowledge which will put one upon Inquiry.</p> <p>One for whose benefit an unrecorded deed is given, to third parties for his security cannot assert a superior claim to the premises thus conveyed as against one who acquires an interest therein without notice of the rights of the person for whose benefit such deed was given, nor is knowledge that such deed is given for the indemnity of the grantees in such deed notice of the rights of the real party in interest, nor does such knowledge put the party obtaining it upon inquiry as to who the real party in interest may be.</p> <p>2. Bights Acquired by Foreclosure under Agreement.</p> <p>A foreclosure of a deed of trust under an agreement that a third party shall take the title at the foreclosure sale as trustee for the benefit of the holder of the note secured by such deed of trust and others interested in the title, and thereafter sell the same, or negotiate a loan thereon, vests the title in such trustee subject to the right of the holder of the note, to be repaid from such property the amount represented by such note for which such holder has a lien relating back to the deed of trust under which such title was acquired, and as to others interested in the title such trustee holds the title subject to such right of the holder of the note, and likewise subject to any liens thereon created by such interested parties.</p> <p>3. Security—Subrogation of Creditor.</p> <p>When a debtor has given security to his surety for the indemnity of the latter only, the creditor is entitled to the benefit of the same, and may, by proceedings commenced in equity, before the surety lias, in good faith, surrendered or discharged such security, subject it to the payment of his debt.</p> <p>4. Same.</p> <p>Where security is given by a debtor for the indemnity of his surety only, there is no element of trust in such security in favor of the creditor until he has taken proper steps to subject it to the payment of his claim. And until the creditor has taken such steps, the surety has a right to release any such security.</p>

<p>Pbactice—Advancing Causes.</p> <p>An application to advance a cause to tlie head of the calendar in the supreme court will not be considered until the abstract and all the briefs have been filed in accordance with the rule of court, and the case is ready for submission.</p>

<p>1. Execution Sale.</p> <p>The effect of a sale of laud ou execution is to destroy all liens which are subsequent to the lien of the judgment upon which the execution was issued, or that which it was used to enforce.</p> <p>2. Merger.</p> <p>The purchase of a prior charge or incumbrance upon property, by one who claims the ownership in fee, does not in equity merge such charge or incumbrance. Where tlie legal ownership of the land and the absolute ownership of the incumbrance become vested in the same person, the intention governs the merger in equity. If the intention is expressed, it controls; if not expressed, it will be presumed from what appears to be the party’s best interests; if his interests require the incumbrance to be kept alive his intention to do so will be inferred.</p>

<p> Error to Court of Appeals. </p>

<p>1. Practice—Calling in Judge from other District.</p> <p>Under the general laws of this state, a judge of one district may at any time, and for any purpose which, seems proper to him, call in another judge from another district to try any cause or proceeding pending in his court, whether it he an ordinary action or special proceeding.</p> <p>2. Same—Conflicting Evidence.</p> <p>Although the evidence is conflicting, if there he sufficient legal evidence in the record to sustain the findings and judgment, a reversal will not he had. The record examined and the findings of the lower court sustained.</p>

<p>1. Specific Pebfoemabue of Cobtbact—Pleadibu.</p> <p>G-. was indebted to T. evidenced by promissory notes secured by deed of trust on farming land and a water riglit used in irrigating said land and other property. An agreement was made between them whereby G-. was to convey to T. the land and water right, in consideration that T. should surrender and cancel the notes and release the deed of trust. T. entered into possession of the land and water right under the agreement. Shortly afterwards G-. tendered to T. a warranty deed to the land and water right, and demanded the surrender and cancellation of the notes; but T. declined to accept the deed, and refused to surrender the notes. G-. brought an action to enforce specific performance of the contract. The complaint described the land, but did not, in terms, mention the water right, but alleged that the conveyance was to be of the land “ together with all appurtenances thereto belonging.” Held, that under the facts of the case the allegations of the complaint were sufficient to admit evidence of a contract to convey land and a water right and there was no variance between the contract alleged and the one proved.</p> <p>2. Pleading—Amendment.</p> <p>Where the defendant could not have been surprised at the evidence of plaintiff; if the complaint was not sufficiently broad to admit the evidence, an amendment should have been allowed to make the complaint correspond with the evidence.</p> <p>3. Watek Bight—Conveyance.</p> <p>A water right is a distinct subject of grant, and may be conveyed either with or without the land. Whether a deed to land conveys the water right depends upon the intention of the grantor, to be gathered from the express terms of the deed; or, when the deed is silent as to the water right, from the presumption that arises from the circumstances, and whether such right is or is not necessary to the beneficial enjoyment of the land.</p>

<p> On Removal from, the Court of Appeals. </p>

<p>1. Tbtjst Fund—Liability of Thustee.</p> <p>In order to subject a private estate of a defaulting trustee to tbe payment of the trust fund that has been by him wrongfully converted, it is not necessary to trace such funds into any particular property, but it must be clearly shown that it went into and was used for the benefit of such estate.</p> <p>2. Pbactice.</p> <p>In the absence of the evidence from tbe record it will be presumed that it was sufficient to sustain the findings of the court.</p>

Plaintiffs commenced this action to recover from the defendants an interest in the Nevada and Champion lodes, and the value of ores extracted from the premises, averring that these claims were located April 13, 1880; that they purchased their interest from the locators, and allege a compliance upon their part, and the part of their grantors, with the laws relative to mining claims; and that subsequent to such purchase, the defendants, or some of them, in 1886, became the…

January 18,1897, information was filed before a justice of the peace, which, omitting the formal parts, charged that the plaintiff in error, “on or about the 19th day of September, and continuously since, A. D. 1897, in the county and state aforesaid, being the husband of affiant, and an able-bodied man, did and does wilfully neglect, fail, and refuse to provide reasonable support for the maintenance of affiant.” To this information, on being arraigned, he pleaded not guilty.

<p>1. Practice—Bill of Exceptions.</p> <p>Errors relating to the giving of instructions, the admission and rejection of evidence, the conduct of the court in controlling the procedure at the trial and the insufficiency of the evidence to support the verdict cannot he considered by the supreme court in the absence of a bill of exceptions presenting the same.</p> <p>2. Same.</p> <p>A bill of exceptions signed and sealed by the trial court one day after the record is certified by the clerk, not filed in the district court, nor certified by the clerk as a true bill of exceptions, cannot be considered as a part of the record.</p> <p>3. Practice—Information.</p> <p>Where the law provides that an offense may be committed in different ways, connecting the different methods of committing the offense with the word “ or,” an information is not double which charges a defendant with all the ways in which the offense may be committed employing the conjunction and where the statute has “ or.”</p> <p>4. Practice—Demurrer.</p> <p>Upon an issue of law raised by demurrer, the court cannot determine a question of fact presented by affidavit in support of the demurrer, and which does not appear upon the face of the information.</p> <p>5. Liquor License.</p> <p>The law requiring a license for selling liquor applies to cities and incorporated towns.</p>

<p>1. Intoxicating Liquors—Sale without License—Medicinal Purposes.</p> <p>In a prosecution for selling intoxicating liquors without license, the fact that the liquor was sold for medicinal purposes is no defense.</p> <p>2. Same—Permits.</p> <p>Our statutes confer upon towns and cities authority to grant permits to druggists for the sale of liquor for medicinal and certain other purposes. Without such permit, a legal license is an essential condition to the right to sell liquor for any purpose.</p> <p>3. Evidence.</p> <p>In a prosecution for the sale of liquor without license, the intent of the ■ party selling is immaterial; it is therefore error to admit evidence of other sales to show the intent with which the sale in question was made.</p> <p>4. Instructions.</p> <p>Where no exceptions are taken to the giving of instructions, they will not be reviewed on appeal.</p>

This is an application for a writ of mandamus to compel the appellant, Thomas F. O’Mahoney, as sheriff of Lake county, to execute a sheriff’s deed to appellee Stone, to certain mining claims, in pursuance of an execution sale. A demurrer was sustained to the answer of appellant to the alternative writ, and judgment awarding a peremptory writ was ren-‘ dered. From this judgment O’Mahoney prosecutes this appeal. The material facts are stated in the opinion.

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

Plaintiee in error was convicted, on an indictment charging that he “ on the 8th day of May, A. D. 1897, at the County of Pueblo, State of Colorado, did then and there, being * * * a male person of the age of fourteen years and upwards, upon the person of one Jennie Hiney * * '* a female person under the age of eighteen years, to wit: of the age of sixteen years, feloniously made an assault; * * * and her, the said Jennie Hiney, did then and there feloniously and forcibly…

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

<p> Appeal from the Court of Appeals. </p> <p> Motion to dismiss appeal. </p> <p>This suit was originally instituted in the district court of Pitkin county, by the First National Bank of Aspen, as the legal owner and holder of the promissory note of the St. Joe and Mineral Farm Consolidated Mining Company and The Mineral Farm Consolidated Mining Company, for the sum of $40,000, secured by a trust deed upon certain property, for the purpose of procuring the substitution of a trustee to execute the powers of the trust, because of the absence from the state of the trustee designated therein. It averred its ownership of the note, the amount due thereon, and its right to cause the sale of the property to be made, under the terms of said trust deed, for the purpose of collecting the same; and prayed “ for an order, judgment and decree, appointing and designating a successor in trust, with full power and authority to exercise and perform any and all the duties, powers and authority conferred and granted by said deed of trust unto the same Aaron Heims, as such successor, to the end that said trustee may proceed under the terms and provisions of said deed of trust, to make sale of said property, or so much thereof as may be necessary, in order to secure unto this plaintiff full payment and satisfaction of said promissory note, interest, * * * costs,” etc.</p> <p>The answer of appellant companies denied the allegations of the complaint, except that the trustee had departed from the state; averred that the note was made by one B. Clark Wheeler, for his own use and benefit, and that he had no right or authority to execute the same in the name of defendant companies ; that the note was entirely without consideration, and that the same came into the hands of plaintiff with knowledge of such defects. They also interposed a cross-complaint, setting forth the illegality of the transaction, the invalidity of the note, and prayed, among other things:</p> <p>“ That said note be delivered up by the said The First National Bank of Aspen, and cancelled, and that said deed of trust be satisfied of record, and declared to constitute no lien or charge upon the property of these cross-complainants.”</p> <p>To the answer and cross-complaint plaintiff filed a replication, and upon the issues joined, the case was tried to the court. The court made certain findings in favor of plaintiff, and thereon entered the following judgment:</p> <p>“ And the court doth order, adjudge and decree that the said plaintiff is the owner and holder of the note described in said complaint, and that the same is a valid and subsisting note and indebtedness against the said defendants The St. Joe and Mineral Farm Consolidated Mining Company, and The Mineral Farm Consolidated Mining Company, and that there is now due thereon, principal and interest, the sum of 153,469.32, and that the said deed of trust above mentioned and set forth in the said complaint herein is a valid and subsisting lien on the property therein described and hereinbefore described for the purpose of securing the payment of said note, principal and interest, and the expenses connected therewith, as provided in said deed of trust; and that Benjamin Strawbridge, of Aspen, Pitkin county, Colorado, be and is hereby appointed trustee in and under said deed of trust, with all powers, rights and authorities conferred and granted by the terms of said deed of trust upon the trustee therein named, with full power and authority in lieu and instead of the trustee and successor so in said deed of trust named and provided for, to sell the property therein and in this decree described, under, by virtue of, and in accordance with the terms and provisions of said deed of trust, and to have and exercise any and all power, authority aud rights therein conferred upon the trustee therein named as fully as though the said Benjamin Strawbridge had been named as the original trustee in said deed of trust, and in pursuance of the powers therein granted for the purpose of enforcing the payment of said note, principal and interest, according to the terms of said deed of trust.”</p>

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