Volume 25 — Colorado Reports

<p>1. Replevin—Instiínctions.</p> <p>Where the defendant in a replevin suit claimed the property by purchase from the wife of a mortgagor as the owner, it was immaterial whether or not he had notice of the mortgage, and that the mortgage was not recorded. It was not erroneous to refuse instructions that contained a correct statement of the law relative to the failure of the mortgagee to take possession of the mortgaged property; and the giving of an erroneous instruction on the same question was error without prejudice, since the defendant was neither a purchaser from the mortgagor, nor had acquired a creditor’s lien.</p> <p>2. Same—Vebdict.</p> <p>The defendant in a replevin suit cannot complain because the verdict which was for plaintiff was only for the return of the property, and not also for the value of the property in case a return could not be had.</p>

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

<p>1. Evidence—Res Gesta:.</p> <p>Where a party was killed at the depot of appellant, a conversation heard between deceased and his daughter-in-law a few days before, in which conversation deceased arranged to meet his daughter-in-law at the depot at that time, was admissible as a part of the res gestee to explain deeeaséd’s purpose in going to the depot grounds at that particular time.</p> <p>2. INSTBUCTIONS—CONTBIBUTOEY NEGLIGENCE.</p> <p>An instruction that in effect told the jury that if they believed from the evidence that the deceased was guilty of negligence which contributed directly to the accident, then plaintiffs could not recover, unless they further believed from the evidence that the conduct of defendant’s servants was willfully or wantonly reckless, is objectionable because it fails to state the particular circumstances under which the wanton or reckless conduct of a defendant absolves the injured party from the consequences of his contributive act; ‘also because it announces an exception or qualification of the prevailing doctrine of contributory negligence as being the general rule; and seems to recognize the doctrine of comparative negligence, which is not recognized in this jurisdiction.</p> <p>3. Same.</p> <p>'The rule announced is applicable only, when, notwithstanding the con- • tributary negligence of the party injured, the defendant’s servants, after becoming aware of the danger to which he has exposed himself, might by ordinary care have avoided the injury, and are guilty of such conduct as will imply an intent or willingness to cause the injury.</p> <p>■4. Same—Compabative Negligence.</p> <p>'The rule of comparative degrees of negligence does not prevail in this state. If the injured party’s negligence contributed in any degree as the proximate cause of the injury, there can be no recovery; and his negligence, however gross, would not exempt the defendant from liability for an injury willfully and intentionally inflicted.</p> <p>¡5. Same.</p> <p>'The instructions should in all cases be based upon the evidence, and an instruction, no matter how correct the principle which it may announce, that impliedly assumes the existence of evidence which was not given, is erroneous.</p> <p>>6. Same—Mbasube op Damage.</p> <p>The recovery of damages authorized by statute in case of death by negligence, is purely compensatory, and is limited to tlie pecuniary loss to the party, that may be entitled to sue, resulting from the death. An instruction that omits this limitation and leaves the jury at liberty to find any amount they may deem fair and just, not exceeding the maximum of $5,000, regardless of the fact whether plaintiffs suffered any pecuniary loss by the death of deceased or not, is erroneous.</p>

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

The plaintiff (appellee) was a member of an engineering party employed by tbe defendant company, and claims to have been injured while in the discharge of his duties.

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

The appellee, plaintiff in the district court, brought this action for divorce against her husband Robert Ward, the appellant, as defendant below, upon the two grounds of non- . support and, in the language of our statute, “ extreme or repeated acts of cruelty.” The defendant filed an answer denying the allegations of the complaint, and therein, and by way of cross-complaint, under four separate statements, charged plaintiff with extreme and repeated acts of cruelty to him.

This controversy arises out of the settlement of the estate of Clark Lipe, deceased.

<p>Water Rights—Adjudication or Priorities—Jurisdiction.</p> <p>Where a water district extends into two or more counties, and an action is brought in the district court of the proper county to adjudicate the priorities of rights to the use of water in such district, such court acquires and retains exclusive jurisdiction to adjudicate such priorities in said district.</p>

<p> Appeal from the District Oourt of Larimer Oounty. </p>

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

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

This is a proceeding under the act “ to provide for contiguous towns and cities to become annexed.” Session Laws, 1893, p. 451.

. Appeal from, the District Court of Weld County. On March. 19,1884, Benjamin F. Hottell was the owner of two adjacent tracts of land at Fort Collins, Colorado, separated merely by an arbitrary line, situate upon one of which was a grain elevator, and upon the other, and near this elevator, was a flouring mill.

JError to the 'District Court of Weld County. ■ » The 'Platte Valley Irrigation Company is the owner of Evans Ditch No. 2, taking water from the South Platte river; the Buckers Irrigation, Milling- and Improvement Company owns a ditch, known as the Buckers, which draws its supply from the same source, below the point of diversion by the Evans. Below the head-gate of the Buckers is located the intake of the Farmers’ Independent Ditch, drawing its supply from the same source.

The Water Supply and Storage Company commenced this action in the district court of Larimer County against the Larimer and Weld Reservoir Company and R. Q. Tenney, water commissioner. For convenience, the Water Supply and Storage Company will be mentioned as the storage company, and the Larimer and Weld Reservoir Company as the reservoir company.

<p>1. Statute Construed—County Boundaries.</p> <p>Act of April 4, 1887 (Mills’ Ann. Stats, sec. 771) provides that whenever the boundary lines of any county are so indefinite that by reason thereof territory is claimed by two counties, upon petition of the board of commissioners of either county it shall be the duty of the state engineer, in connection with the county surveyor of each such counties, to run out and establish as nearly as may be, the indefinite boundary, and to fix and define such boundary line by plain and substantial mounds, marks and natural monuments. Held that an actual survey and marking of the line upon the ground is intended by the act, and an attempt by the state engineer and county surveyors to fix a disputed county boundary line without going upon the ground and making an actual survey, was unauthorized and their proceedings were without any force or effect whatever.</p> <p>2. Practice—Dismissal.</p> <p>In an action by one county against another which was created partly from the territory of the former, to determine what proportion of the indebtedness of the old county should be assumed by the new, where there was no evidence as to the value of the taxable property in the territory cut off from the old county, a judgment dismissing the action was proper, although the answer admitted some indebtedness. In the absence of the proof, the only alternative was to dismiss the action or render judgment for defendant; and as the court adopted the course least prejudicial to plaintiff, it has no ground of complaint.</p>

In 1889 and the early part of 1890, the River and Rail Electric Company was doing business in Colorado Springs. There was a disagreement respecting the management of the corporate affairs of the company, which resulted in a contest between the stockholders, one faction being represented by Clement D. Smyth, the defendant in error in this court, whose business interest in the company was managed by Edward Ferris.

On the evening of January 11, 1896, appellee was injured by a car operated by appellant, and brought this action to recover damages resulting from such injury.

<p>1. Cities and Towns—Sidewalks—Neg-li&ence.</p> <p>In populous portions of a city where the sidewalks are constantly used by the public, it is the duty of the city to use reasonable care to-keep the entire sidewalk in repair and free from defects and reasonably safe for public travel.</p> <p>2. Instructions.</p> <p>A party to an action is not in a position to complain of an instruction given at his request.</p> <p>3. Personal Injury—Excessive Damage.</p> <p>In cases of personal injury it is exclusively the province of the jury to estimate and assess the damages, and unless the amount allowed is so manifestly disproportionate to the injury received as to make it apparent that the jury were influenced by prejudice, misapprehension, or by some corrupt or improper consideration, the law does not warrant the court in disturbing the verdict on the ground that the damages are excessive.</p>

JError to the County Court of Arapahoe County. John M. League, the defendant in error, brought this action against the Sams Automatic Car Coupler Company in the county court of Arapahoe, county for an alleged breach of contract of employment, joining as defendants H. R. Woodward and Lou D. Sweet, as guarantors or sureties for the fulfillment of the contract on the part of the company.

This action was brought by H. M. Swigart, as trustee (defendant in error) to foreclose a trust deed on the West Santa Fé mining lode, situate in Clear Creek… Held: and release the trust deed securing the same, and surrender for cancellation the stock of the company held by them, and, in lieu thereof, accept a certain number of shares. of the capital stock of the company (practically all the shares) to be issued upon the cancellation of the surrendered notes and stock.

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

<p>' 1. Mutual Benefit Insubance—Unincobpobated Associations— Action Against—Name of Pasties.</p> <p>Under section 14, code, an action may be maintained against an unincorporated association or. order under the associated name, on a policy of mutual benefit insurance.</p> <p>2. Same.</p> <p>An action may be maintained against a subordinate or branch organization or association upon a mutual benefit insurance policy, where the policy is the obligation of the subordinate or branch association, although the association is under the control of, and the certificate was under the seal of, a supreme lodge. On a policy in which the obligation was that “ The Board of Control of the Endowment Bank, Knights of Pythias of the World will pay” an action was properly brought against such rank under its associate . name.</p>

<p> Error to the District Court of El Paso County. </p> <p> Motion to strilce amendment of MU of exceptions from files. </p>

<p>1. Wateb Rights—Appbopbiation—Time oe Use.</p> <p>Appropriation of water can only be made by an actual diversion followed by an application thereof, within a reasonable time, to a beneficial use. One may make a prior appropriation of a certain quantity of water to be enjoyed for a certain part of the year, and afterwards another may appropriate from the same source a like quantity to be used for the balance of the year, and as to the respective parts of the year the water has been used by each, each would be a prior appropriator.</p> <p>2. Wateb Rights—Appbopbiation—Change of Use.</p> <p>Where water is appropriated for the purpose of furnishing power to a mill, and after its use is permitted to flow, undiminished, back into the natural stream, it becomes subject to another appropriation, and when so appropriated the mill appropriator cannot change the character of use or place of diversion in such manner as to injure or deprive the latter appropriator below the mill of his use of the water.</p> <p>3. Water Rights—Appropriation—Priorities.</p> <p>Where water has been appropriated for mill purposes, and after its use permitted to flow back into the natural stream, and is afterwards appropriated during the winter months for the purpose of storage in a reservoir, from where it is afterwards used for irrigation, the appropriator for storage purposes acquires a prior right to the use of the water during the months he has appropriated it, and such priority cannot be defeated by an abandonment of the mill appropriation in favor of, or by transfer to a reservoir appropriator above the mill whose appropriation for storage purposes is prior to the appropriation below the mill, but subsequent to the mill appropriation.</p>

Briefly, from the bill filed by appellee in. the court below, it appears that he is the proprietor of a theatre in the city of Denver, known as the Orphenm, in which he holds Sunday performances without which, it is alleged, he cannot successfully conduct his business; that the city has passed an ordinance subjecting to a fine those conducting Sunday theatrical performances similar to his.

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

This action was originally commenced by Greig, plaintiff in error, against J. F. Clement and J. C. Kendall, to recover possession of chattels, and damages for their alleged wrongful detention by these parties. At the instance of Greig a writ of replevin issued, by virtue of which the property was delivered to him. In the caption to the complaint, these defendants were respectively designated deputy sheriff and sheriff ‘of Garfield county.

The facts that are material to'the questions presented by the record in this case are as follows: The Farmers’ Protective Association, a corporation, was the owner of two pieces of property in Fort Collins, Larimer county, Colorado, on one of which was situated a grain elevator and on the other a flouring' mill, which for convenience are designated in the record as the “ elevator property ” and the “ mill property.” On the 2d day of October, 1886, being indebted to Miles A.…

This action was originally instituted in the district court of Jefferson county by the plaintiff in error Standart, to compel the defendant in error to furnish twenty-five inches of water during the year 1894, to be used on a portion of section 11, township 3 S., range 69 W. He, as assignee of Crippen, Lawrence & Company, claims title to the land through divers mesne conveyances from one Eli Allen, and the use of the water as an appurtenant thereto.

<p>1. Appellate Pbactice—Exceptions—Motion eob Nonsuit.</p> <p>The rule that precludes the supreme court from examining the evidence as a whole to determine whether or not it is sufficient to sustain the judgment, when no exception to the judgment is saved in the bill of exceptions, does not prevent the court from considering plaintiffs evidence to determine whether or not defendant’s motion for non-suit was properly decided.</p> <p>2. Motion eob Nonsuit—Exceptions—Waives.</p> <p>An exception taken to the overruling of a motion for nonsuit at close of plaintiff’s testimony is not waived by tbe introduction of evidence by tbe defendant, unless defendant’s evidence cures tbe defect in plaintiff’s evidence.</p> <p>3. Principal and Agent—Commission.</p> <p>Tbe mere fact that a principal sold to a purchaser produced by his agent, did not of itself entitle the agent to commission, where in attempting to make the sale the agent exceeded his authority, and the buyer produced was upon different terms than those prescribed by the authority under which he acted.</p> <p>4. Appellate Practice—Exceptions—Evidence—Instructions.</p> <p>Where no exception is saved to a judgment in the bill of exceptions, the evidence may not be examined for the purpose of determining whether it is sufficient to sustain the judgment, but it may be examined for the purpose of determining whether the court properly submitted the case to the jury under appropriate instructions.</p> <p>¡5. Principal and Agent—Commission—Agent’s Bad Faith.</p> <p>The mere fact that a principal repudiated his agent’s contract and subsequently made a sale satisfactory to himself to the same purchaser, did not entitle the agent to commission, if the agent’s contract was repudiated on account of his bad faith, and acts in excess of authority. The agent’s compensation depends upon his conduct, his good faith and the effect of his infidelity, and departure from instructions, upon the interest of his principal. And instructions to the jury which failed to embody this principle, where the evidence justified, were erroneous.</p> <p>6. Same—Agent Representing both Parties.</p> <p>In an action by an agent for commission, it is competent to show in defense that the agent acted in antagonistic capacity as agent for the buyer and seller without the knowledge of his principal.</p> <p>1. Practice—Pleading—Evidence—Objections.</p> <p>When evidence is objectionable only because the pleadings do not raise the issue, the objection and ruling of the court should be placed upon that ground, so the party offering the evidence may have an opportunity of applying for permission to amend his pleading.</p>

jError to the District Court of San Juan County. The original complaint was filed in the district court of San Juan county on August 6, 1890, and contained eleven separate causes of action,—seven upon promissory notes, two on overdue hook accounts, and two on time cheeks assigned to the plaintiff. To the action L. 0. Thompson and F. L. Thompson were made defendants.

<p>Contracts—Specific Performance—Consideration.</p> <p>A written agreement to sell land at a specified price within a specified time, on which nothing is paid by tbe purchasers, and which does not bind them to buy, and where the purchasers do not take possession, nor make any improvements on the property, is without consideration and will not support an action for specific performance. The writing was merely an offer to sell, and could be withdrawn at any time before it was acted upon.</p>

<p>1. Eminent Domain—Ditch—Right op Way—'Waives.</p> <p>In an action to condemn a right of way for an irrigating ditch, by demanding a jury to ascertain and assess the damages caused by the taking of the land, and by a voluntary trial of that question before a jury the respondent waived his right to have the preliminary question of the necessity of taking the land for the ditch submitted to a commission.</p> <p>2. Same.</p> <p>Where a jury was demanded and impaneled to try the question of damages caused by taking land for right of way for a ditch, the question of the necessity for taking the land could not be tried before the jury.</p> <p>3. Appellate Practice—Abstract op Record.</p> <p>It is not a duty of the court to search the record to find that which counsel should point out and print in the abstract under the rules, but neglect to do so.</p> <p>4. Appellate Practice—Verdict op Jury.</p> <p>The mere fact that the amount of damages awarded by the verdict of the jury may not correspond exactly with the testimony of any particular witness, is no ground for setting aside a verdict, nor does such variance between the damages testified to by a witness and found by the jury, support the proposition that the verdict is contrary to the evidence.</p> <p>6. Damages—Verdict op Jury.</p> <p>The fact that a jury in awarding damages for right of way for a ditch, awarded damages to all the land which the respondent owned, instead of confining themselves to that immediately adjoining the strip taken, could not injure the landowner.</p>

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

<p> Error to the District Court of El Paso County. </p> <p> On motion to strike out bill of exceptions. </p>

JSrror to the District Qou/rt of Arapahoe County. • This action was originally commenced by defendant in error against Nance, state treasurer, for mandamus, requiring him to pay a warrant drawn by tbe state auditor. The alternative writ issued, and was served upon the respondent Nance, who demurred to the petition. This appearance was by Hon. Eugene Engley, then attorney general.

The first count of the indictment, which is the only one material on this review, charges that the defendant and six other persons, naming them, “feloniously, wilfully and maliciously did conspire, co-operate and-agree together to burn and cause to be burned a certain residence building of the property of Peter Winne, trustee, situate * * * in the town of Colfax, in said Arapahoe county, in the state of Colorado.” The defendant Marks Lipschitz demanded a separate trial; was…

<p>Rape—Insteuctions.</p> <p>In a prosecution for rape where the only evidence introduced for tlie prosecution was the testimony of the prosecuting witness in which she claimed the offense was committed by physical violence, and there was no evidence of threats on the part of defendant, nor of facts from which the jury might legitimately infer that the prosecuting witness was induced to submit through fear of personal violence, the court instructed the jury as follows: “1. Where threats of personal violence are made to overcome the will of a woman, and she believes that her person is in danger from such threats, and is induced thereby to submit to the will of the person making such threats, and he has sexual connection with her, then the law considers such carnal knowledge as having been forcibly and against the will of the female. ’2. The court instructs the jury that where a female submits to sexual intercourse through fear of personal violence and to avoid the infliction of great personal injury upon herself, then such carnal intercourse is punishable as rape.” Held reversible error, though such instruction would he correct where the facts called for its application.</p>

<p> Appeal from the District Court of 31 Paso County. </p>

<p>Opinion Foiiowed.</p>

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

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

<p>1. Practice—Objection to Evidence—Statute of Frauds.</p> <p>The bar of the statute of frauds cannot be taken advantage of upon an objection to the introduction of any evidence.</p> <p>'2. Water Bights—Pleading.</p> <p>A complaint which alleges a contract for the use of water from a ditch sufficient to irrigate 160 acres of land is sufficiently definite as to the amount of water, to state a cause of action.</p> <p>3. Water Bights—Oral Contract—Performance.</p> <p>An oral contract for the perpetual use of water from a ditch sufficient to irrigate a certain 160 acres of land, based upon a consideration, and performed by both parties, and followed by possession and use of the water for several years, is sufficient to maintain an action to enforce the right under the contract.</p> <p>4. Water Bights—Notice—Possession and User.</p> <p>The open and notorious possession and user of water from an irrigating canal through lateral ditches is constructive notice to a purchaser of the rights of the party so in possession and using the water.</p> <p>5. Water Bights—Decree.</p> <p>A decree that adjudged plaintiff to be the owner, and entitled to the use, of sufficient water flowing through an irrigating canal for the irrigation of 160 acres of land, is sufficiently definite and certain as to the amount of water decreed.</p>

<p>Opinion Followed.</p>

This is an action brought in support of an adverse, and involves the right to the possession of certain mineral land in California Mining District, Lake county, Colorado. The appellee, defendant below, who is seeking to obtain a patent for the land in controversy, claims the right thereto by virtue of certain lode locations alleged to have been made in 1892, and known as the Belle of the West, Warren B. Fitzgerald, Spar, and Jesse Gray lode mining claims.

The answer of the court is in response to interrogatories propounded by the Governor. In the preliminary statement of his communication are the various sections of the constitution and of the revenue act, and the facts bearing upon the questions submitted. Therein, among other things, is the recital that the county assessors of the state have disregarded the provisions of the statute which require that property shall be assessed for taxation at its full cash value.

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

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

<p>Opinion Followed.</p>

In the district court of Lake county the defendant Tate was convicted of gambling, and sentenced' to confinement in the county jail for thirty days, and to pay a fine of f>500 and costs, and to stand committed until the fine and costs were paid in full. He served out the jail sentence, and then, before the acting judge of the court at chambers, made application, under section 1475, Mills’ Ann.

To the complaint a demurrer, filed by Thomas T. Woodruff, who alone of the defendants was served with process, was sustained, and the plaintiffs electing to stand thereby, a judgment of dismissal was entered, which is now before us on appeal.

<p>1. Deed of Trust—Trustee’s Sale—Request of Beneficiary.</p> <p>In a deed of trust where the power óf sale is conditioned upon the request of the beneficiary, such a request is a condition precedent to the power to sell, and a sale made by the trustee without such request and in the absence of circumstances from which such request might be inferred, is unwarranted, and a purchaser acquires no title thereunder.</p> <p>2. Same—Caveat Emptob.</p> <p>The rule of caveat emptor applies to trustees’ sales, and a purchaser at such sale is bound to know that all conditions upon which the trustee’s power to act depends, have been complied with.</p> <p>3. Same.</p> <p>A provision in a deed of trust that in case of sale the recitals in the trustee’s deed shall be taken as prima facie evidence of the facts therein stated, does not relieve the purchaser from the rule of caveat emptor. At most, such provision would only cast upon a party assailing the deed the burden of producing evidence sufficient to remove this prima facie presumption.</p> <p>4. Practice—Evidence—Objection to Depositions.</p> <p>An objection to depositions on the ground that the certificate of the notary public is not according to law, cannot be raised for the first time at the trial.</p> <p>5. Evidence—Admissibility.</p> <p>In an action to set aside a trustee’s sale on the ground that it was made without the knowledge and consent of the beneficiary, where the trustee who was a guarantor of the note attempted to conceal the sale by continuing to pay interest, a protested draft of the trustee made to pay an instalment of interest two months after the attempted sale, was admissible in evidence' to show a purpose on the part of the trustee to conceal from the beneficiary the fact of the attempted foreclosure, and also as confirmatory of his testimony that he had no knowledge of the attempt until put on inquiry by this protested draft.</p>

This action was begun in the county court of Weld county by Francis L. Childs, as administrator. Apparently it was brought on the probate side of the court, for the initial pleading is styled a petition, and the party brought into court is called the respondent. The petition contains three causes of action, the first two of which are not involved here, and it is only the third with which this court is concerned.

Appellee, as plaintiff below, seeks to recover from appellant tbe balance due upon the purchase price of the contents of a drug store, sold by him to Edward and Frank Crowl, and bases his right upon the following facts, claimed by him to have been established at the trial: That at the time negotiations for the sale were pending, the latter referred him to appellant for information regarding their financial responsibility, and the value of mining stock which they proposed to…

<p>Appellate Pbactice—Rules of Couet—Stipulation.</p> <p>Parties cannot by stipulation or agreement fix or extend tbe time for filing abstracts and briefs in tbe supreme court contrary to the rules of the court, and unless such agreements are approved by tbe court, they will be disregarded, and where tbe rules of tbe court are ignored in tbe filing of abstracts and briefs by plaintiff in error tbe writ of error will be dismissed notwithstanding defendant in error may not insist on such dismissal.</p>

<p>1. Judgments — Jurisdiction—Receiver’s Certificates — Intervbnors.</p> <p>In a proceeding for tlie appointment of a receiver for a corporation, parties claiming an interest in tlie property as mortgage creditors who had foreclosed their mortgages and held certificates of purchase, and under execution sales, intervened and opposed the appointment of the receiver, upon application of the receiver resisted by the intervenors, it was ordered by the court that the receiver he authorized to issue receiver’s certificates, and they were adjudged to be a prior lien to the mortgage and execution sales claimed by intervenors. Held, that the judgment authorizing the certificates and making them a prior lien, while not a judgment against the intervenors, personally, yet the liability imposed upon their interests was measured in money, and was therefore a money judgment and being for more than $2,500, the supreme court has jurisdiction of an appeal from such judgment.</p> <p>2. Final Judgments—Appeals.</p> <p>A final judgment from which an appeal will lie,- is not necessarily the last judgment in the cause, but is one that is conclusive and fixes the rights of the parties upon any question in the cause. A judgment of the court authorizing a receiver to issue receiver’s certificates and making them a prior lien on the property in his hands was such final judgment against intervening lien claimants as would support an appeal, although the main cause was still pending in the lower court.</p> <p>S. Pbactice—Pasties—Appeals.</p> <p>Parties upon whose application a receiver was appointed were proper and necessary parties to an appeal by intervening lien claimants from an order of court authorizing the receiver to issue receiver’s certificates and making them a prior lien on the property in his hands.</p> <p>4. Pbactice—Appeal Bond.</p> <p>An order of court authorizing a receiver to issue receiver’s certificates and making them a prior lien, appealed from by intervening lien claimants, was not a money judgment against appellants on which they were liable, and they were not required to give an appeal bond conditioned for the payment of the judgment, but only for such costs and damages as appellees might sustain.</p> <p>5. Pbactice—Appeal Bonds.</p> <p>Where an appeal is prosecuted in good faith and the bond is sufficient in amount and sureties, the appeal will not be dismissed because it may include an additional obligee who was improperly made an appellee, but appellees may move for a reformation or for a new bond.</p>

The appellees, plaintiffs below, seek to establish and enforce a personal liability against the appellants for a balance alleged to be due for certain work done and performed by them in the construction of a portion of the roadbed of the Elk Mountain Railway, located in Pitkin, Gunnison and Garfield counties.

<p>Opinion Eoi/lowed.</p>

<p>Pr.mnnro and Pbactice—Demubbee—Amendment.</p> <p>Under see. 73, code, after a demurrer was filed to a complaint and before tbe issues of law were heard, the plaintiff had a right to amend his complaint as of course, and if in vacation, no other notice of the filing of such amended complaint was required except to serve-defendant with a copy within ten days after the filing thereof. And without further notice or order of court defendant was required to plead to such amended complaint within ten days after service thereof. After the expiration of ten days from service of the amendment plaintiff was entitled to a default and the fact that the court extended the time for the defendant to plead did not make any further notice necessary.</p>

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

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

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

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

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

Upon Review from the District Court of Arapahoe County. Respondent and others nominated a ticket by petition, under the name and emblem of the National People’s party, ■which was filed with the secretary of state. Objections were made to these nominations by the state chairman of this party, which were sustained by the secretary of state upon the ground that they were not made by those representing the party. This ruling, on review by the district court, was affirmed.

Upon Review from the District Court of Arapahoe County. Held: at which there was present a majority of the regularly constituted members of this committee, who affirmed the action of the executive committee, in removing chairman Fleming, and appointing chairman Eddy in his stead, and directed the latter to issue a call for primaries for the selection of delegates to a county convention, the…

Original Action in this Court. This is an original proceeding instituted in this court by the petitioner in his official capacity as secretary of state, against the respondents, who are severally sued in their several capacities as chairmen; and as the representatives of the two factions, each claiming to lawfully represent that voluntary political organization known as the Silver Republican party in the state of Colorado.

Upon Review from the District. Court of Lake County. Charles Cavender and others were nominatedby petition as the candidates of the Teller Silver Republican party, in which petition the emblem of that party, theretofore filed in the nomination of a state ticket, was also adopted. This certificate of nomination was filed on the 20th day of October, 1898.

Upon Review from the District Court of Arapahoe County. October 28, 1898, there was filed with appellee, as comity clerk and recorder for the county of Arapahoe', a certificate of nomination by petition, whereby certain persons were designated the nominees of “ The Anti-Fusion Populist Party.” These nominations were protested by appellant, which protest was overruled, which ruling, on review by the district court, was affirmed.

Upon Review from the District Court of JSl Paso County. Action by respondents in the court below to review the ruling of petitioner, in refusing to certify them on the official ballot as the nominees of the Silver Republican party for the county of El Paso, and in holding that another set of nominees was entitled to be so certified, which ruling was reversed by the district court, from which judgment petitioner brings the case here for review.

<p>1. Elections—Petitions fob Review—Laches.</p> <p>Where protests to certificates of nominations were ruled on by the secretary of state, one of September 15, and the other of September 21, and on October 17 a petition was filed in the district court to review the rulings of the secretary of state, the petition was not filed with the promptness required by the statute, and a motion to dismiss the proceeding on the ground of the laches of the petitioner should have been sustained.</p> <p>2. Elections—Conventions—Bolting Delegation.</p> <p>Where a political convention for a senatorial district composed of two counties was regularly called by the chairman of the district committee, and the convention met with an uncontested delegation from one county, and two contesting delegations from the other, and was called to order by the chairman of the committee, whereupon the secretary of the committee attempted to read an order from the chairman of the state central committee removing the district chairman and appointing another, which caused an uproar and confusion, and the secretary retired to the rear of the hall with one of the contesting delegations and organized another convention, held that the withdrawing delegation was not justified in leaving the convention, and the delegates that remained represented the party, and the name of their nominee was entitled to be printed on the official ballot, under the name and emblem of the party.</p>

<p> Review from the District Court of Huerfano Comity. </p>

Review from the District Court of Arapahoe County. This case was submitted upon an agreed statement of facts, • from which it appears that one Charles H. Brierly was, in. 1896, elected by the regular convention of the Silver Republican party, chairman of the district central committee of the-first congressional district of Colorado, and as such chairman, by authority of the district central committee, issued, and published a call for a convention of the Silver Republican…

<p>1. Election Contest—Pleading—Demurrer—Answer.</p> <p>The system of procedure provided by statute for contesting elections is exclusive, and if a contestee desires to controvert the truth of the matters averred in the statement of contest, he must do so by filing an answer in the time prescribed, and cannot avail himself of a demurrer for the purpose for which it is ordinarily used; but if he elects to interpose a demurrer it must be regarded as the equivalent of an answer admitting the truth of the matters averred, and it is unnecessary to introduce evidence in support of the allegations of the statement of contest.</p> <p>2. Election Contest—Pleading—Sufficiency of Allegations.</p> <p>In an election contest for a county office the allegations of the statement of contest must bring the case within some one of the enumerated causes constituting grounds for contest under the statute.</p> <p>3. Same.</p> <p>In a statement of election contest, an allegation that the name of the contestee was unlawfully printed upon the official ballot under the name and emblem of a political party of which he was not the nominee, and that the filing of the certificate of nomination of contestee as the nominee of such political party was the result of a fraudulent conspiracy between contestee and the county clerk, and that by reason of having his name so printed under the name and emblem of the said political party he had counted for him a large number of votes to which he was not entitled, sufficient to reduce the number of his votes below the number cast for contestor, does not state a cause for contest under the statute. It was contestor’s duty to make his objection to the printing of contestee’s name on the official ballot under the name and emblem to which he was not entitled in seasonable time and in the manner provided by the election law, and failing to do so, he cannot be heard after election to urge such objections, when to uphold them would be to overthrow the expressed will of a majority of the legal voters of the county.</p>

<p>1. Pbactice—Equitable Defense to Legal Action.</p> <p>Under section 59, code of civil procedure, an equitable defense may be interposed to an action at law for possession of real estate.</p> <p>2. Same.</p> <p>In an action for possession of real estate where the defense interposed is possession and valuable improvements under an oral contract of purchase from plaintiif’s grantor of which plaintiff had notice, such defense to prevail against plaintiff’s legal title must be established by evidence as clear and satisfactory as would be necessary to enforce specific performance of the contract in a court of equity.</p> <p>3. Same—Dibecting the Juey.</p> <p>In an action for possession of real estate where the defense interposed was an equitable defense of possession and valuable improvements under an oral contract of purchase, where the defendants conceded that the legal title was in plaintiffs and the only evidence to be passed on by the jury was that pertaining to the equitable defense, the verdict of the jury would be merely advisory, and it was competent for the court to direct the jury to return a verdict for the plaintiffs, or to take the case from the jury and render a judgment for plaintiffs, even though there was a conflict in the evidence.</p> <p>4. Same—Tendee—Excuse eob Eailube to Make Tendee.</p> <p>Evidence that a defendant claiming to hold land under a parol contract of purchase offered to borrow money to pay, but was dissuaded from so doing by the grantor, who told defendant it was unnecessary, is not sufficient to furnish an excuse for failure to make tender of the purchase price.</p> <p>5. Appellate Pbactice—Findings op Teial Gouet.</p> <p>The findings of fact by the trial court on conflicting.evidence will not be interfered with on appeal.</p> <p>6. Pbactice—Habmless Eeeoe.</p> <p>The fact that the trial court directed a verdict for plaintiff before defendant had rested his case is not reversible error where the evidence offered, if received, could not have cured the defects in the defendant’s proof.</p>

<p>Appellate Practice—Jurisdiction oe Supreme Court.</p> <p>The supreme court has no jurisdiction of an appeal from a judgment in replevin for the return of the property, where there was no finding of value of the property in the lower court, although the complaint alleged the value at $5,000 and the allegation of value was not controverted by the answer.</p>

<p>1. Practice—Judgments—Amendments.</p> <p>Where, a judgment was rendered against an administrator as administrator, but the clerk by mistake entered it against him personally, the judgment could be corrected, and in the absence of anything in the record to the contrary it will be presumed that the court was justified in causing the correction to be made.</p> <p>2. Practice—Administrator—Appearance—Waiver.</p> <p>An administrator may by voluntary appearance in an action waive service of notice or summons. Where a claim against an estate was ' filed in the prohate court after the date fixed by the administrator in his notice to creditors, without giving the administrator the ten days’ notice of filing such claim as provided by statute, but the administrator voluntarily appeared and answered and resisted the allowance of the claim and appealed to the district court from a judgment entered on the claim and went to trial in the district court • without raising the question of failure to serve notice, in either court, he waived the objection of failure of notice and could not thereafter raise the question.</p> <p>3. Pbactioe—Claim Against Estate—Continuance—Waives.</p> <p>By voluntarily appearing and going to trial on the merits of a claim against an estate without raising the objection, the administrator waived the irregularity of a failure to enter a formal order, continuing the hearing upon the claim from time to time till the day of trial.</p>

<p> Proceeding for Disbarment. </p>

Jüi-ror to the County Court of Larimer County. Plaintiffs in error were prosecuted under an information for selling goods without license, which, in effect, charged that they, not having a legal license or permit to peddle goods, did peddle, sell, vend and retail wares and merchandise, not being produce, provisions or mining tools, nor commodities manufactured by them within this state, the merchandise so sold being a Home Comfort steel range.

On motion to set aside orders substituting party, as plaintiff in error and dismissing cause, and to reinstate. Mr. Chas. J. Hughes, Jr., and Mr, Tyson S. Dines, for plaintiff in error. Mr. Chas. E. Cast and Messrs. Rogers & Shaeroth, for defendants in error,

<p>1. Appeals—Jtjbisdiction op Supbeme Oouet—Fbeehold.</p> <p>A decree which divests one company of the title to an irrigating canal and vests it in another company for the benefit of the water right owners, involves a freehold so as to give the supreme court jurisdiction on appeal'.</p> <p>2. Appellate Peaotice—Stipulation op Counsel.</p> <p>Stipulation of counsel contravening the rules of the court governing the preparation and submission of causes in the supreme court will not be recognized unless an order of court is obtained in accordance with the stipulation. Where appellants claimed an oral agreement' with appellee for an extension of time within which to file hriefs, which was controverted by appellee, the court will not undertake to determine the disputed question, but will dismiss the appeal.</p>

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

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

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

Appellee bases his right to a recovery under a lease to an undivided one-half interest in designated lands, which provided that the lessee, for a definite period, should enter upon the demised premises and work them in manner necessary to good and economical mining of coal; that, for the purpose of putting them in condition for such mining, work should commence on a specified date, and be prosecuted with reasonable diligence; lessee was required to pay a fixed royalty on…

This is an equitable action brought by appellees as creditors of the North Denver Bank, in behalf of themselves and such other creditors as may join them, against appellants as stockholders in said bank, to enforce the, statutory liability under the following statute: “ Section 1.

<p>Costs.</p> <p>Costs in an action are recoverable only by virtue of the statute allowing them, and there being no provision in the statutes allowing costs iu a proceeding to annex contiguous towns and cities, costs cannot be allowed in such proceeding in the lower court; but a writ of error is a new and independent action, wherein the right to costs is expressly provided by statute (sec. 691, Mills’ Ann. Stats.) and by rules of the supreme court (Rules 28 and 30). Under said statute and rules the successful party may recover costs incurred in the supreme court upon writ of error in annexation proceedings.</p>