Volume 25 — Colorado Court of Appeals Reports

<p>Error to Weld District Court. Hon. Harry P.- Gamble, Judge.</p>

<p>Error to Weld District Court. Hon. Harry P. Gamble, Judge. '</p>

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

<p>1. Statutes — Construction. The statutes of eminent domain are to be strictly construed. They pass only such estate or interest in the lands as is reasonably necessary to accomplish the purpose had in view in the condemnation proceeding.</p> <p>2. Eminent Domain — Title Acquired — Effect of Abandonment. Where, in condemnation proceedings, the final order, under Rev. Stat., sec. 2420, authorizes the petitioner to take hold, etc., the premises described, “for railroad purposes,” a mere easement or terminable fee is acquired. When the land is no longer used for the public purpose specified, the right so conferred reverts to the former owner, or his successor in interest.</p> <p>The provision of Rev. Stat., see. 2431, that the owner shall receive “the full and actual value,” does not affect the result.</p> <p>3. Evidence — Presumptions. There is no presumption that those who assume to convey lands as the heirs of a decedent are, in fact, such heirs. Whoever claims under -the conveyance has the burden of establishing their character as such.</p>

<p>Appeal from Arapahoe District Court. Hon. .Charles McCall, Judge.</p>

<p>Practice — Findings of Fad Construed. Action for money lent, the advance being made by the check of plaintiff payable to defendant. On appeal, defendant contended that the court below based its finding entirely upon the check. But the findings expressly stated that “the check corrodorates the plaintiff’s testimony.” This was held to overthrow the appellant’s contention.</p>

<p>1. Pleadings — Allegations on Information and Belief. The complaint alleged, as to material facts, that plaintiff “is informed and verily believes,” without the additional allegation “and on information and belief avers.” Held the omission did not impair the sufficiency of the complaint, and the cause having been tried without regard to it, it was disregarded on appeal.</p> <p>2. -Amendment. Action against the officers of a foreign corporation, upon a promissory note of the corporation, which, it was alleged, though doing business in Colorado had failed to file with the secretary of state any copy of its charter as required by statute (Rev. Stat, see. 916). An amendment of the complaint to the effect that such corporation had been carrying on business in Colorado for about one year prior to the execution of the note, held properly allowed.</p> <p>3. Contracts — Law of Place. The law. of the place where the contract is made controls as to its validity and the capacity of parties; the law of the place of performance, with reference to all questions concerning performance, whether the action is brought at the place of performance or elsewhere; and the law of the forum as to all questions concerning the remedy.</p> <p>The capacity of a corporation is determined hy the law of its creation, hut may he restricted or encumbered with conditions by the statute of another state where it attempts to contract.</p> <p>When the capacity or authority of an agent, executor, or administrator is in question, the law of the state or country where the relation was created necessarily enters as a factor.</p> <p>But even though the party making the contract was capable thereto, it may still be unenforcible, because it calls for the performance of acts, to which, according to the law of the place of performance, such person is incompetent.</p> <p>A foreign corporation doing business in Colorado fails to file with the secretary of state a copy of its charter as required by'statute. A promissory note executed by such corporation in Colorado, but payable in another state, charges the officers of the corporation, under Rev. Stat., sec. 919.</p> <p>4. Corporations — Foreign—Liability of Officers and Members. The statute requiring every foreign corporation doing business in Colorado to file with the secretary of state a copy of its charter, and imposing upon the officials and members of such corporation personal liability upon all contracts of the corporation made within this state (Rev. Stat., secs. 916, 919), was intended primarily for the protection of our own citizens, and applies only to such foreign corporations as engage in the general prosecution here of the business for which they were incorporated.</p> <p>A single transaction is not “doing business,” and the phrase does not include the mere sale of shares, measures taken for promoting the affairs of the corporation," or meetings of the directors for such purposes only.</p> <p>A corporation organized unde» the laws of Arizona was operating a mine located in the republic of Mexico. The directors of the corporation resided in Colorado Springs, and the superintendent of the mine corresponded with them in reference to his operations. Pertain shares of stock had been sold at Colorado Springs by correspondence with a party in Chicago. The treasurer, of his own motion, had caused letter-heads to be printed, designating a certain office in Colorado Springs as the main office of the company. The corporation owned no property in Colorado, and, save to execute one promissory note evidencing the loan of money, had never done any business within the limits of Colorado. In an action upon this note against the officers of the corporation, under Rev. Stat., secs. 916, 919, held that the corporation had not “been doing business” within the meaning of the statute.</p> <p>5. Statutes — Construed. The act of 1901 (Laws 1901, c. 52, Rev. Stat., secs. 901-912) has not the effect to repeal Rev. Stat., secs. 916, 919.</p>

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

<p>Appeal from Garfield District Court. How. Johr Shumate, Judge.</p>

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

<p>1. Judgment by Default- — Upon Substituted Service, Based Upon an Insufficient Affidavit, disclosed by tbe record, is a nullity.</p> <p>2. Summons — Publication—Affidavit. No provision of tbe code allows tbe statement on information and belief of any of the matters required to be stated in an affidavit to secure tbe service of summons by publication. The statement as to defendant’s postoffice address, or that it is not known, must be made in positive terms.</p> <p>3. -Affidavit as to Defendant’s Residence. There were several defendants, one of them a Colorado corporation which could reside nowhere but in Colorado. The affidavit to support an application for the publication of the summons stated that all these defendants “either reside out of this state, or have departed thence, without any intention of returning, or conceal themselves so as to avoid service of process.” Held that these averments, as applied to many defendants, individual and corporate, taken in connection with the failure to give the postoffice address of any defendant, or to state ¡that the address was unknown, suggest an effort to conceal, rather than to provide, information of the suit. As to a Colorado corporation, it was noted that the affidavit could not be true; that such a corporation cannot depart the state nor conceal itself. And, it appearing that this corporation, being trustee in a deed of trust under which the defendant claimed title to the lands in litigation, it was not reasonable to suppose that if the summons had reached the corporation it would not have been communicated to the defendant.</p>

<p>Conveyances — Acknowledgment in Another State. A conveyance of land situate in Colorado may be acknowledged before any of the officers named in the statute (Rev. Stat., sec. 684). If acknowledged before any other officer, the certificate of acknowledgment must be accompanied by the certificate of the clerk of some court of record, under the seal of the court, affirmatively showing that by the laws of such other state such officer is authorized to take and certify such acknowledgment. The statement need not be in the language of our statute, but must be a clear and unequivocal statement of such authority. No presumption to support it will be indulged.</p> <p>The mere statement in the certificate “that full effect and credit ought to he given” to the acts of the officer certifying the acknowledgment is not a compliance with the statute.</p>

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

<p>1. Executors and Administrators — Exhibition of Claims. Under Rey. S'tat., sec. 7212, formal pleadings are not required in presenting a claim against a decedent’s estate:</p> <p>A claim was presented in the following words:</p> <p>“Estate of C. C. Brown, deceased, to Gobin Stair, Dr., April 1, ’08. That C. C. Brown held in trust and converted the sum of two thousand dollars belonging to Gobin Stair $2,000</p> <p>Credit — Paid on above account...... 500</p> <p>Balance .....................$1,500”</p> <p>Held sufficient. But the court note that it appeared beyond controversy that the administratrix had long known of the claim, and, in a general way, of the facts upon which it was based, and could not have been misled by the manner in which it was presented.</p> <p>2. -Exhibition of Claim to Administrator, is not required under Rev. Stat., secs. 7210, 7211, to avoid the bar of the statute of limitations. It is sufficient if the claim is filed within one year from the granting of letters.</p> <p>3. County Court — Jurisdiction. The county court has jurisdiction to allow against an intestate’s estate a claim as for money had and received founded upon a purchase of land by the intestate, in his own name, with funds of the claimant.</p> <p>4. District Court — Appeal from County Court — Jurisdiction. Where a cause of which the district court would have had original jurisdiction is brought to it by appeal .from the county court, and the parties proceed to trial without objection predicated upon the absence of jurisdiction in the county court, all defects in the jurisdiction of the county court are waived.</p> <p>5. Abatement — Prior Action Pending, must be pleaded; or, where there are no formal pleadings, must be raised by proper objection at the trial or it will be considered as waived.</p> <p>6. Assumpsit — Money Sad and Received — Waiving Tort. Brown, and Stair were employed as attorneys for a client who had removed to another state. Brown having obtained from Stair authority to settle the fees of the two visited the client at her new place of residence, and, though the fee was payable in cash, took from her a conveyance to himself of lands valued at $4,000.00, giving the client his receipt for $3,500.00 in full of his fees, and the like receipt of Stair for $500.00. In fact, Brown had been employed at the instance of Stair, and with the agreement that the fee should be equally divided. Seld that Stair was entitled to sue in equity for the undivided one-half of the lands, or, waiving the tort, to sue for the value of one-half of the land; and that Brown, having departed this life, Stair might assert against his estate a claim of the same character.</p> <p>7. Evidence — Character of Evidence Required to Establish a Resulting Trust in Land. In the same case it was contended that the evidence to sustain plaintiff’s claim to a moiety of the fee should be of the same character as required to establish a resulting trust in land, i. e., clear, certain, satisfactory, and, according to some authorities, conclusive. The court, not conceding this proposition, were of the opinion that, even admitting it to be sound, the plaintiff’s claim was sufficiently established by the testimony of the client as to t-he conversations had at the time of Brown’s employment. The client, it was said, was not a stranger to’ the transaction,- but a party, and materially interested, and her testimony was not mere hearsay, or declarations of a party made to a stranger, or a mere chance conversation, such as condemned by the authorities. Being credited by the jury, it was sufficient to convincingly establish a- definite agreement as to the division of the fee.</p>

<p>1. Fire Insurance — Construction of Policy. A contract of insurance against fire is one of indemnity; it will fie given the construction most in accord with the natural and profiafije intept of the parties.</p> <p>2. Appeals — Law of Case. The opinion of the supreme court in a former appeal is the law of the case where the evidence upon the second trial sufficiently approaches that given upon the former trial to make the opinion of the supreme court controlling.</p>

<p>Disosii-^Unqualified Statement, as to Which Party Making It Has No Knowledge. A positive statement of matter of fact, susceptible of knowledge, implies an affirmation of knowledge on tbe part of tbe one making tbb statement. If be bas no knowledge as to tbe matter, be is guilty of actual fraud.</p>

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

<p>1. Pleadings — Construed. In. an action against the directors of a corporation under Rev. Stat., sec. 911, the complaint averred the recovery by plaintiff of a judgment against the corporation for a sum certain, with costs. Held that plaintiff must be regarded as counting upon the judgment so alleged, and that inasmuch as the judgment was not recovered (until after the institution of the action), and after the directors had complied with the statute by filing the required report, there could be no recovery.</p> <p>Where the complaint averred that the corporation “duly incurred certain obligations,” held that an “obligation” not being synonomous with the word “debt,” used in the statute, the "plaintiff should have pleaded the nature of these obligations, and that they fell within the class of liabilities contemplated by the statute.</p> <p>And, where it appeared by the' complaint that plaintiff had agreed to subscribe for four thousand shares of the corporation, and to pay therefor $500.00 in cash, and the residue by a bankable note due in six months, and the agreement further provided that if the corporation should fail in certain undertakings set down in the agreement plaintiff should have the option of returning the stock, and that the corporation should refund to him the full amount which he had paid, but the complaint failed to show that the corporation had not complied with what was required of it by the agreement, or that plaintiff had elected to avail himself of his option, or even that he had complied with his part of the agreement, held there could be no recovery.</p> <p>2. Corporations — Liability of Directors for the Debts of the Corporations — Statute Construed. This statute making the directors of a corporation liable for its debts in case of failure to file the annual report (Rev. Stat., sec. 911) is penal in character and to be strictly construed. The liability of the directors attaches after sixty days from January 1st, and the “preceding year,” for the debts contracted during which the directors become personally liable, dates from the sixtieth day after January 1st, and extends back twelve months from the date of their default. .</p> <p>Not every liability can be made the basis of an action against the directors, e. g., liabilities asserted by reason of a tort of the corporation, or a judgment founded upon such tort.</p> <p>3. Judgment — Record as Evidence. In an action to charge the directors of a corporation with its debts, under Rev. Stat., sec. 911, the mere record of a judgment recovered by plaintiff against the corporation is not admissible in evidence unless accompanied by the judgment roll. That the complaint upon which the judgment was rendered is also offered is not sufficient.</p>

<p>Appeal from Teller District Court. Hon. James Owen, Judge.</p>

<p>1. Evidence — Opinions as to the Ultimate Facts, which are for the jury only, are inadmissible unless the witness is a qualified expert, or his testimony involves a description, estimate of magnitude, velocity, value, or the like, or from the nature of the subject of inquiry it is impossible or difficult to state in detail the facts and their surroundings 'with such exactness as to produce in the minds of the jury the impression which personal observation has produced in the mind of the witness. Cases upon the subject examined.</p> <p>2. Appeals — What May Be Assigned for Error — Errors Waived. Plaintiff, who in the trial below allowed many witnesses to give their opinion as to the ultimate facts upon which the jury are to pass, and elicits from his own witnesses their opinions upon the same question, waives the error.</p> <p>So where, in an action for negligence, the defendant not only admits irrelevant and incompetent evidence as to the conduct of the defendant after the accident, but gives affirmative evidence upon the same subject, he will not be heard to assign error upon the admission of like evidence over his objection.</p> <p>3. Negligence — Conduct of Defendant After the Accident. A party is not to be charged with negligence on mere proof that after the accident he repaired the alleged defect, or defective condition, to which the in-' jury is attributed. Such conduct should receive the approval and encouragement of the courts.</p> <p>4. -Evidence — Prior Accidents. In an action against, a municipal corporation for injuries attributed to the defective condition of a public walk, evidence of prior similar accidents at the same place is admissible to show notice to the corporation of the defective condition of the walk where such notice is in issue.</p>

<p>1. Money Had and Received — Where the Action Lies. Where 'the party sought to he charged has actually received, or had the benefit of, money of the other, for which, in equity and good conscience, he ought to account, e. g., where a corporation has actually received and appropriated money borrowed by its agent without authority.</p> <p>2. Appeals — Defective Pleadings — Amendment Presumed. Where, upon proper application, in apt time, it would be the duty of the trial court to permit an amendment of the complaint to correspond with the proof, the complaint will, in the court of review, be treated as so amended.</p>

<p>Appeals — Finding Upon Sufficient Evidence, will not be disturbed.</p>

<p>1. Evidence — Pedigree—Burden of Proof. "Whoever asserts that a particular person is descended from another has the burden of proof.</p> <p>2. - Opinions. The assured in a life policy was born out of wedlock. The sister of his mother testified that a man named was his father. Held mere opinion, and not evidence.'</p> <p>3. -Pedigree — Hearsay as to, is admissible, but is to be received with caution.</p> <p>4. -Evidence Examined. Action upon an insurance policy upon the life of one Good. The defendant attempted to show that the assured was, in fact, the son of one Rist, who died of pulmonary consumption, contrary to the declarations of the assured in his application. Verdict for the plaintiff. The evidence being examined, the court declined to set aside the verdict.</p> <p>5. Tkials — Objections to Evidence. Where a writing offered in evidence is objected to, upon grounds which go to the whole of the document, and counsel for the party, in making the offer, is of the opinion that as to some part the paper is admissible, it is his duty to indicate this to the judge presiding, and, if he fail in this duty, he is not at liberty to afterwards assign error upon ruling of the court excluding the whole document.</p> <p>6. Appeals — Theory of the Case TJpoh the Trial Below. Appellant is bound by the theory of the case which his counsel advocated below.</p> <p>A party will not be heard to assign error upon the instructions which he himself prayed in the trial court.</p>

<p>1. Appeals — Finding on Conflicting Evidence, is conclusive on appeal.</p> <p>2. - Questions Not Presented Below. Objections to instructions which were not called to the attention of the trial court will be disregarded on appeal.</p> <p>3. --• Harmless Error. Generally one will not be heard to complain of an error which is to his profit.</p> <p>4. New Total — Verdict Substantially Conforming to the Evidence, will be sustained.</p> <p>5. Bill oe Exceptions — Time of Filing. There is no limit of. time within which the bill of exceptions must be filed with the clerk. If certified by the clerk to ’the court of review, as part of the transcript, this is sufficient evidence of its timely filing. That it bears a file mark as of a day antecedent to its authentication by the judge is unimportant</p>

<p>Error to Gilpin District Court. Hon. Flor Ashbaugh, Judge.</p>

<p>Appeal from Costilla District Court. Hon. Chas. C. Holbrook, Judge.</p>

<p>Appeal from Park District Court. Hon. Charles Calender, Judge.</p>

<p>1. Tbusts — Resulting Trust — Evidence. A^ resulting trust in lands will not be declared, except upon evidence which is clear, positive and convincing, or, as some courts declare, excluding all reasonable doubt. The evidence examined and declared too indefinite and unsatisfactory to establish the trust.</p> <p>2. - Conveyance Between Husband and Wife. Where the husband pays the purchase money on lands and takes a conveyance to the wife, it is presumed that a gift was intended; whereas, if the purchase money is paid by the wife, and the title, conveyed to the husband, a resulting trust is presumed.</p> <p>3. Appeals — What May Be Assigned for Error. The exclusion of a competent witness offered to establish material matter is error, even though another witness testifies to the same matter. It will not be assumed that the witness excluded would have merely corroborated the one examined. It might well be that he would have remembered some things which had escaped the memory of the other.</p> <p>4. -Harmless Error. An erroneous view of the law in the court below, in' no manner operating to the prejudice of the appellant, will not reverse.</p> <p>5. Evibence — Witness—Competency. Under the act of April 3rd, 1907 (Laws 1907, c. 231, Rev. Stat., sec. 7267, par. sixth), a married woman residing with her husband, in the house of her stepfather, by his request, nothing more being shown as to their relations, is not a member of his family, and is not competent to testify as to a conversation between the stepfather and another, in an action in which she seeks to establish, as against the heirs at law of the stepfather, a resulting trust in lands of which the stepfather died seized in fee.</p> <p>The statute qualifies only those living with thé deceased, who, upon his demise, would inherit from him.</p> <p>6. Wokds and Phkases — Family, in its broadest sense, includes those who descend from a common progenitor; in a less comprehensive sense, those living together as one household, under one head; in a still more limited sense, only parents and their children. In a statute not prescribing the sense in which the word is used, it is to be interpreted according to the context and the subject matter.</p>

<p>Appeal from Denver County Court. Hon. George W. Dunn, Judge.</p>

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

<p>1. Tblal — Offer of Evidence for a Special Purpose. One offering a deed as color of title merely cannot afterwards invoke it as evidence of title in fact.</p> <p>2. Tax Titles — Void Deed. A treasurer’s deed reciting a sale to the county and an assignment of the certificate of purchase by the county clerk, after the lapse of three years from the sale, is void.</p> <p>3. Quieting Title — Limitation. The five-year statute of limitations (Rev. Stat., sec. 5733) is no plea to a bill to quiet title.</p> <p>4. - Tender of Taxes, paid by the defendant, is not required prior to the institution of a suit to quiet the title as against one holding under a tax title.</p> <p>5. -Judgment — Record as Evidence. The mere judgment entry, without the judgment roll, is not admissible as evidence of title.</p> <p>6. Limitations — Payment of Taxes. Tax deed recorded April 22, 1901. A tax paid in 1902 for the year 1901 is not to be counted as one of the successive yearly payments mentioned in the statute. (Rev. Stat., secs. 4087, 4090.)</p> <p>7. - Color of Title. A tax deed is not color of title until recorded.</p> <p>8. -Laches — Bill to Quiet Title. The defendant had made no improvement upon the land nor done any act in respect to it, by reason of plaintiff’s failure to bring his action at an earlier day. Held he was not in position to complain of the delay.</p>

<p>1. Contract — Construed. A receipt for money as part of the purchase price of lands described, bearing the signature of the vendors only, held a mere option.</p> <p>2. Vendor and Vendee — Tender of Abstract of Title. A receipt for $500.00 as “part of the purchase price” of lands described, provided that an additional sum should be paid on a day named, abstract of title to be. furnished showing a good merchantable title, and that if the additional cash payment should not be made on the day specified the receipt would be void, and the $500.00 forfeited as liquidated damages.</p> <p>The vendors called at the office of the purchaser on the day prior to that appointed for the second payment, to complete the transfer, and, that day being Sunday, called again on the following Monday, tendering the abstract. No demand for the abstract had been made by the purchaser. Held that the tender of the abstract was in time. The abstract being certified to within three days of the tender, and the land being situate in Weld county, while all the parties resided in Denver, it was observed by the court that it was unreasonable to expect an abstract certified down to the hour of tender.</p> <p>3. -Purchaser’s Objections — Shifting Position. The purchaser defaulting in the payment of the purchase money at the day stipulated, and then basing his refusal entirely upon his financial inability, cannot afterwards allege a defect in the abstract of title tendered to him, nor that it was not tendered in proper time.</p> <p>4. Quieting Title — 'When the Action Lies. Vendee of lands failed to pay an instalment of the purchase money at the day stipulated. The contract provided that upon such default it should he void, and both parties released, etc. Nevertheless the purchaser filed the contract for record, and asserted claim thereunder. Held that the vendors were entitled tó a decree cancelling the contract and quieting their title.</p>

<p>Appeal from Denver District Court. Hon. Greeley W. "Whiteord, Judge.</p>

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

<p>1. Check — Presentation for Payment. There is no hard and fast rule as to when a check must he presented for payment. It must be presented within a reasonable time, which depends on the situation of the parties with reference to one another, and to the hank, as well as all other material facts and circumstances attending the transaction.</p> <p>The cashier of a hank was also treasurer of a municipal corporation. In the latter capacity lie received from the city clerk a check drawn upon the same bank. Knowing that the bank was in failing condition he omitted to present the check on the day of its receipt, alleging as an excuse that he “did not have time,” and, on the next secular day, the bank closed its doors. Held he was derelict in failing to present the check on the day upon which it came to him.</p> <p>2. Public Officer — Liability for Public Moneys Lost by Failure of Bank. A city treasurer who deposits the money of the city in a bank is liable therefor if lost by the failure of the bank.</p> <p>3. Municipal Corporations — Liability of Treasurer. Under Rev. Stat., sec. 6639, the city council have the election to either designate a bank where the corporate funds shall be kept, and thus relieve the treasurer and his sureties if the bank fails, or to decline making such designation, holding the treasurer as an insurer. The designation must be made by ordinance.</p> <p>The deposit by a city in a bank of large sums of money as special interest-bearing deposits does not amount to such designation.</p>

<p>Appeal from Denver County Court. Hon. H. S. Class, Judge.</p>

<p>1. Limitations — When the Action Accrues — Demand Note. A promissory note bearing date “4-12-1901” was expressed to be payable “ * * * after date.” Interest was declared to be payable annually and to draw interest as principal. No demand of payment was made until 1904, and interest was paid from 1902 to 1906. Held manifest, in view of the terms of the paper and the conduct of the parties that it was not the intention that the note should become immediately due, and that the statute of limitations began its course upon the demand made in 1904.</p> <p>2. New Trial — Affidavits of Jurors, assuming to set forth the means used in reaching the verdict and the intention of the jury, will not be considered upon appeal.</p> <p>3. Interest — Contract for — Daw of Place. Parties may lawfully stipulate for the payment of interest, according to the law of the place of payment. Interest may be recovered accordingly, although the contract be unlawful by the laws of the state where the contract was made.</p> <p>4. -Interest Upon Interest, may, by express contract, be recovered, where this is permitted by the law of the place of payment.</p> <p>5. Judicial Notice — Decisions of Foreign Courts. Where the law of another state is in question, the decisions of the highest court of such state will be judicially noticed.</p>

<p>1. Life Insurance — Construction of Policy. The policy stated that the insurer agreed as afterwards set forth, “in consideration of the representations made in the application therefor, which is hereby made the basis of and a part of this contract.” Also it declared that “all the statements made in the application, and those contained in the declarations to the medical examiner, which with this declaration constitute an application to, etc., for insurance upon the life, etc., are offered to the said company as a consideration of the contract applied for,” and that the assured adopted each of these statements as her own, and. warranted them to be “full, complete and true.” Held that not only the application proper, but all the other statements and declarations, by ,. whatever name called, were part of the contract, and the basis of the policy. !</p> <p>2. -False Representations, of a fact material to the.risk, and upon which the policy is based, avoid it, even though such misrepresentations are the result of mistake, and made .in.good faith.</p> <p>3. -- Representations Material to the Rislc. A representation that the applicant had never consulted a physician is material to the .risk, when in fact there was such a consultation, not in respect to some temporary ailment, but to a serious malady of chronic character.</p> <p>So a gross misrepresentation as to the age of the applicant defeats the insurance pro tanto.</p> <p>4. Trial — Directing Verdict. Where, in an action upon a life policy, a material representation made by the insured, and declared to be the basis -of the policy, is shown by uncontradicted evidence to be false, the question is not to be submitted to the jury.</p> <p>5. Evidence — Deposition—Effect on Appeal. The verdict of the jury is not conclusive in the court of review as to the veracity of a witness ' who testifies by deposition.</p>

<p>1. Tax Title — Sale to County — Subsequent Taxes. One who purchases from the county a tax purchase certificate is not entitled to a deed until he has paid all taxes subsequently assessed upon the lands.</p> <p>2. Landlord and Tenant — Tenant Acquiring an Adverse Title. If the lands are sold for a tax which the tenant has covenanted to pay he cannot lawfully acquire the tax title'.</p> <p>And where he purchases from the county a certificate of sale for a tax which he was not under obligation to pay, he does not entitle himself to a deed, upon such sale, by the payment of the subsequent taxes which he has covenanted with his landlord to pay; because he pays these, and must pay them, not for himself, but for his landlord; whereas, to entitle himself to such tax deed, he must have paid said subsequent tax for himself alone.</p> <p>3. Tax Titles — Sale to County — Assignment of Certificate. Under chapter 143 of the Laws of 1893, and sec. 6 of chapter 4 of the Laws of 1894, where lands are purchased by the county, at tax sale, the treasurer may'assign a certificate at any time after the sale is made, and the clerfc, at any time within three years from the date of the gale.</p> <p>The assignee must in either instance pay all.taxes which are due and unpaid at the date of the assignment.' If any such tax has been paid by the owner, or any third person, the assignee is not required to repeat the payment.</p>

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

<p>1. Damages — Excessive—Remittitur. Action for personal injury. Damages awarded in $5,100. Order that plaintiff remit $1,100, or submit to a new trial. Remittitur accordingly, and judgment for the residue. Affirmed on appeal.</p> <p>2. -Personal Injury. An award of $5,000 for an injury to a man of 45 years, actively engaged in business, the injury resulting in a permanent impairment of the use of an arm, is not excessive.</p> <p>3. -Evidence. Action for personal injuries. The complaint alleged that plaintiff at the time of the injury was engaged in mining, merchandising, ranching, and banking. Evidence that for many years plaintiff had been in receipt of a salary named was held admissible.</p> <p>4. New Texal — Excessive Damages. A verdict is not to be set aside merely because, in the opinion of the court, the damages awarded are excessive, nothing indicating that the jury were controlled by passion or prejudice.</p> <p>5. -Motion — Statement of the Ground. Whoever applies for a new trial must distinctly advise the court, in ajpt time, of the ground of his application.</p> <p>A reason not asserted in the motion, nor in the assignment of errors, upon appeal, nor in the opening brief, will be disregarded.</p> <p>6. Appeal — Manner of Assigning Error. That “the verdict and judgment are against the law, and the evidence insufficient to support the verdict,” is not a sufficient assignment of error to admit the contention that the verdict was the result of passion and prejudice animating the jury.</p> <p>7. -Brief. An objection to the verdict, first asserted in the hrief in reply, is not in time, and will not be considered.</p> <p>8. Negligence — Pleadings. A complaint against a common carrier of passengers for an injury to a passenger, alleging negligence generally and specific acts of negligence, is to be assailed only by a motion to separate.</p> <p>Whether the plaintiff is required to prove the specific negligence charged, quaere f</p> <p>9. -Pleading Construed. The complaint alleged that defendant “so negligently and unskillfully managed said railroad and train,, and the car which plaintiff was riding * * * that at, etc., by reason of all said acts of negligence, said car was violently overturned and upset,” held sufficient as a general allegation of negligence on the part of the carrier.</p>

<p>1. Judgment — Conclusive Effect. The final 'judgment of a court having jurisdiction both of the subject matter and the person is conclusive upon collateral attack, even though shown to.be erroneous.</p> <p>2. Corporations — Evidence of Domicile. A treasurer’s deed to a corporation described it as of a county named "in the state of New Jersey.” The name not bearing the definite article prefixed, as required by our statute (Rev. Stat., see. 84G), these circumstances were accepted as evidence of its foreign origin.</p> <p>3. -Foreign — Service of Process Upon. A foreign corporation which was named as defendant in an- action brought in Kit Carson county to quiet the title to the lands situate in that county had filed with the secretary of state a certificate designating one R as its agent upon whom process should be served. No such certificate had been filed in the office of the county clerk of Arapahoe county, where service was made, and it was contended that under sec. 38 of Mills’ code (Rev. Code, sec. 40) this service was insufficient. In view of the provisions of Mills’ Code, sec. 39 (Rev. Code, sec. 43), Mills’ Stat., sec. 499 (Rev. Stat., sec. 917), Mills’ Stat., sec. 506 (Rev. Stat, sec. 856), and sec. 10 of article XV of the constitution, it was held that the action was properly brought in the county of Kit Carson, and that the service was sufficient to sustain the decree against the collateral attack.</p> <p>4. Maxims — One Shall Not Have Advantage of His Own Wrong. A foreign corporation which files with the secretary of state a certificate naming a particular person as its agent to receive service of process is affected by service upon such person. It will 'not be allowed advantage of its failure to file the certificate with the county clerk, as required by Rev. Stat., sec. 917.</p>

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

<p>1. Evidence — Burden of Proof. Whoever assails the validity of a decree of a court of record has the burden of proof.</p> <p>2. Judgment — Jurisdiction of the Person — Constructive Service of Process, complying with the statute, is as effectual as personal service. That the published summons did not come to the notice of the defendant therein is unimportant. A decree quieting title to lands upon such service is not to be impeached and annulled by evidence aliunde the record that the plaintiff in the action had no title.</p>

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

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

<p>Taxes — What Are Imposed Upon the Grantor of Lands. Under Rev. Stat., sec. 5703, one who conveys lands between the 30th of June and the first of the succeeding January is liable, there being no express agreement to the contrary in the conveyance, for irrigation district taxes previously assessed.</p>

<p>Error to Denver District Court. Hon. Hubert L. Shat-tuck, Judge.</p>

<p>1. Appeals — County to District Court — Time of Filing Bond. Under Rev. Stat., sec. 1537, the party defeated in the county court is entitled, without any order of the court, to ten days in which to file an appeal bond. The county court at the time of entering judgment may, on cause shown, allow for this -purpose any reasonable time, beyond ten days; and, in the absence of any objection .made at the time, it will be assumed in the court of review 'that the order was made on proper showing.</p> <p>An order extending the time for filing the bond, made without notice to the successful party, is void.</p> <p>So of an order made after the lapse of the time originally prescribed.</p> <p>2. Practice — Motions—■Notice. Under secs. 405, 406 of the code, the county court has no authority to extend the time for filing an appeal bond, without notice of the application first • given to the adversary party.</p>

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

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

<p>Appeal from Logan District Court. Hon. H. P. Burke, Judge. ■ •</p>

<p>1. Quieting Title — Plaintiff’s Title. If the defendant puts in a sufficient answer, the plaintiff must prove his title. Showing neither title nor possession, a judgment in bis favor cannot be sustained.</p> <p>2. -Defendant’s Title. Where defendant, by cross-complaint, prays that title in him be quieted, he occupies the same position as plaintiff, and must prove his title before the relief demanded can be awarded to him.</p> <p>3. Evidence — Objections to Evidence. In an action involving title to lands, a deed not purporting to describe such lands is of no efficacy and will be disregarded upon appeal, even though the defect was not suggested below.</p>

<p>Error to Arapahoe District Court. Hon. Charles McCall, Judge.</p>

<p>The judgment being supported by the evidence, affirmed.</p>

<p>Error being conclusively shown as to the amount awarded to plaintiff, the judgment was reversed, and the cause remanded with directions to the court below to enter judgment for the proper amount.</p>

<p>Appeal from Phillips District Court. Hon. H. P. Bubke, Judge.</p>

<p>Error to Adams District Court. Hon. Charles McCall, Judge.</p>

<p>Error to Adams District Court. Hon. Charles McCall, Judge.</p>

<p>1. Constitutional Law — Imprisonment for Debt. Sec. 12 of art. II of the constitution is not self-executory.</p> <p>2. Statutes — Penal—Construction. A statute authorizing imprisonment for a civil liability is strictly construed.</p> <p>3. Imprisonment fob Toet — Verdict. Action for an assault and battery. The jury found defendant guilty, awarded exemplary damages, and declared the defendant “guilty of evil intent,” not expressly declaring that such evil intent existed in the commission of the tort. Held that an order for the arrest and commitment of the defendant was unwarranted. The statute (Rev. Stat., sec. 3024, 3025) requires that the jury should state in their verdict that “in committing the tort” the defendant was “guilty of malice,” etc.; and the court is not warranted in reading into the verdict a statement of fact which the statute requires from the jury itself.</p> <p>Held further, that in view of Rev. Stat., sec. 2067, the award of exemplary damages was without effect to enlarge the finding of evil intent.</p> <p>4. Instructions — Construed. Action for an assault and battery, the complaint alleging malice, and demanding execution against the body. The answer denied malice. The court directed the jury. to state in their verdict whether defendant, in committing the tort, was “guilty of either malice or evil intent.” Held that the phrase “evil intent” was not intended by the court, or accepted by the jury, as a synonym of malice; and, not being contained in the statute, it was error to direct a finding thereon.</p> <p>5. Damages — Exemplary. Under Rev. Stat., sec. 2067, an award of exemplary damages for a wrong to the person may be upheld if the defendant inflicted the injury in wanton and reckless disregard of plaintiff’s rights, though malice was entirely wanting. .</p>

<p>1. Negligence — Example. The approach to the interior of a coal mine was by a tunnel of irregular width. Miners were passing there, frequently, in going to and from their work. The tunnel was unlighted. At places it was so narrow that the cars by which the coal was removed, or the coal loaded upon them, grazed the wall. The cars were operated at irregular times, without any signal given, and without any brake or other device for stopping them. The driver of a trip of six cars started them with his back in the direction of their motion, and so continued until a miner ascending the tunnel was struck and killed in one of the narrow parts of the tunnel. The light in the miner’s cap would have been seen if the driver had been looking. Held that the driver was negligent.</p> <p>2-, Master and Servant — Servant’s Assumption of Risk. Under Rev. Stat., sec. 2065, the servant never assumes the risk of the negligence of a fellow servant, unanticipated, and which he has no reason to anticipate.</p> <p>3. - Contributory Negligence of Servant — Burden of Proof.. Under Rev. Stat., sec. 2065, contributory negligence of the servant is an affirm•ative defense, and the burden of proof is upon the master.</p> <p>4. Evidence — Credibility of Witness, is for the jury. Their determination will not be reviewed upon appeal.</p> <p>5. - Corroborating Witness — Frame of Question. Action for the death of plaintiff’s husband attributed to defendant’s negligence. A boy examined for defendant gave testimony tending to show contributory negligence on the part of the deceased. On cross-examination certain favors extended by defendant to the parents of the witness were shown. Another witness was asked, by way of corroboration of the boy, whether “after the accident’’ the boy made a statement in reference to the occurrence. Held that inasmuch as it did not appear, and no attempt was made to show, that the statement, whatever it was, antedated the receipt of the favors by the boy’s parents, it was properly excluded.</p> <p>6. Death — Damages—Excessive. The award of $3,500 for the death of plaintiff’s husband held not excessive, in view of the testimony as to-his age, exemplary habits, and earning capacity.</p>

<p>Appeal from El Paso District Court. ITon. W. S. Morris, Judge.</p>

<p>.County Commissioners’ Bond — Liability—Statute Construed. Section. 1219 of the Revised Statutes provides that no account shall be allowed by the Board of County Commissioners unless “made out in separate items, and the nature of each item stated.” Sec. 1251 declares that any member of a board of county commissioners who knowingly acquiesces in any misappropriation of the funds of a county * * * or the allowance of bills “which are not legally allowable * * * shall be liable upon his bond for all damages, both proximate and remote.”. Tn an action upon a county commissioner’s bond it was held in the court below that consent to the allowance of a bill not itemized as required by the section first quoted, rendered the commissioner and his sureties absolutely liable, no matter how just the claim might be. This construction of the statute rejected, and held that such an interpretation of sec. 1219 would necessarily render sec. 1251 highly penal in character, contrary to what was resolved in Morris v. Board of Commissioners, ante.</p>

<p>1. Trial- — Directing Verdict — Testimony of Party in Interest Uncontradicted, is not conclusively presumed to be true. Its credibility must be left to the jury. To direct a verdict .upon the assumption of its truth, is error. Especially is this so, where, in addition to the pecuniary interest, it appears that the party so testifying is animated by a sense of wrong imputed to the adversary party, his memory appears frequently at fault, for a period of years he failed to assert the claim which is the foundation of the action, and then presented the claim for a much smaller sum. . '</p> <p>2. Municipal Corporations — Contracts for Public Improvements. Under Rev. Stat., sec. 6579, no contract for the construction of a public improvement of any kind can lawfully be entered into by a municipal corporation except after advertisement, and then to the lowest responsible bidder.</p> <p>And under Rev. Stat., sec. 6675, the resolution or order to enter into the contract must be adopted with the concurrence of a majority of the members-elect of the council or board of trustees, and the ayes and nays must be recorded. The statute is mandatory and cannot be effectually waived. Every such contract must be express.</p> <p>Services rendered in the construction of a public improvement under a contract entered into without the formalities required by the statute afford no action against the municipality, no matter how valuable such services may be, and though the corporation retains the results thereof.</p> <p>A contract for skilled and technical services, e. g., the employment of one as superintendent of the construction of a public building, is within the statute.</p> <p>3. -Estoppel. Where the statute has not been observed, the contract is void, and the municipality is not estopped to deny liability.</p> <p>4. - Ratification, of a contract of the character prescribed by the statute inquires the same formality as the making thereof. A resolution of the city council accepting the resignation of the party “as superintendent of construction” has not the effect to.ratify his employment without the observance of such formalities.</p> <p>5. - Pleading — Complaint. A complaint seeking to charge a municipal corporation upon a contract, which, by a statute, must be express, should aver an express contract. No action lies upon a quantum meruit for services rendered under a contract entered into otherwise than according to the prescriptions of the statute.*</p> <p>6. -- Statute Construed. The phrase “responsible bidder” in Rev. Stat., see. 6579, is not limited to pecuniary responsibility, but extends as well to the skill, experience and integrity of the party bidding.</p> <p>But it has no application to services of superintendents and the like, rendered by a salaried officer pursuant to statute.</p> <p>7. Intereso? — Municipal Corporations cannot in any manner be made liable for, or legally pay, interest upon an account for services rendered. Bell, J.</p>

<p>1. Ejectment — Evidence. Plaintiff relies upon his own title, and must establish it by proof.</p> <p>2. Public Roads — Proceedings of County Commissioners to Establish— Record. County commissioners in establishing public roads exercise judicial functions and are regarded as courts of special and limited jurisdiction.</p> <p>Whoever relies upon their proceedings as an estoppel or adjudication must show their jurisdiction, both as to the subject matter, and as to the persons whose lands were sought to be appropriated, and must show also the identity of the road.</p> <p>The proceedings being had under Rev. Stat., 1868, c. 76, and the record failing to show a petition by ten free-holders, the termini of the road, a day appointed for hearing the petition, notice served upon the land owners, that any hearing was had, that the viewers appointed were free-holders, or that .the day appointed for their meeting was announced, and there being no evidence to supplement these defects, held jurisdiction was not shown.</p> <p>3. - Notice of Meeting or Viewers. It appearing that the day fixed for the meeting of the viewers was less than ten days subsequent to their appointment, held that the board failed to acquire jurisdiction either as to subject matter ór person.</p> <p>4. - User. The evidence held to establish a public road by user for the width actually traveled and used.</p> <p>5. - 'Width of Road Toy User. The provisions of General Stat. 1883, sec. 2953, sec. 3928, Mills’ Stat., are not effective to extend a public road established by a mere user, beyond the width actually traveled, nor to apply to such a highway the provisions of Rev. Stat., sec. 5849.</p> <p>The width of a road so acquired is not to be extended by reference to a void record as color of title.</p> <p>6. Evidence — Presumptions—Burden of Proof. Whoever relies upon the order of a tribunal of specially limited jurisdiction has the burden of establishing the jurisdiction. Save as. it appears from the record no' presumption attends the proceedings of such tribunals.</p>

<p>1. Evidence — Admissions in Pleading. In an action upon the judgment of the court of another state, the admission that such court is a court of record, the service of process, and appearance, and the non-•payment of the judgment disposes of all questions as to the existence of the judgment unsatisfied, and the jurisdiction of the court, hoth as to the person and subject matter.</p> <p>2. Foeei&n Law — Presumptions. There is no presumption of law that the statutes of another state regulating the practice of the courts are identical with those of this state.</p> <p>3. Evidence — Judicial Notice — Decisions of Other States. Iin an action up.on a judgment rendered in another .state the court will invoke the decisions of the court of final-resort of that state as to the rules of pleading which there obtain.</p> <p>4. Constitutional Law- — Judgment of Another State. The judgment of a court of another state, having jurisdiction, is conclusive upon the merits. The defendant will not be heard to deny its obligation, nor to impeach it for fraud in obtaining, it, save in cases where the court in which the judgment was given, would, itself, allow the defense, in an action upon the judgment.</p>

<p>1. Deed of Trust — Limitation. ' Proceedings for the sale of lands under powers contained in a deed of trust are not an action, and are not barred by Rev. Stat., sec. 4001. Otherwise as to an action to foreclose, where an action at law is barred.</p> <p>So of an equitable action for the appointment of a substitute trustee, to the end that such substitute may proceed under the power.</p> <p>If such action can be regarded as otherwise than a bill of foreclosure it is within Rev. Stat., secs. 4070, 4071, 4073.</p> <p>2. Limitations — Express Trust. The rule that the statute of limitations does not .run against an express trust ordinarily applies only between the trustee and the beneficiary. It has no application to a bill to foreclose a mortgage, nor to a bill for the appointment of a substitute trustee under a deed of trust.</p>

<p>1. School Districts — Legislative Control. School districts, being public agencies, they and their directors are subject to legislative control, save as the legislative power may be limited’ by the constitution.</p> <p>2. Higi-i Schools — Pupils from Another District — Liability of District of Pupil’s Residence. The requirement of the last proviso in sec. 6 of the act of April 23, 1909 (Laws 1909, c. 202), that the tuition fees of a pupil residing in one district, attending high school in another, shall he paid by the district of his residence, is not in violation of the provision for uniformity in see. 2 of art. IX of the constitution.</p> <p>3. Constitutional Law — Title of Statute. ' The title of the act of April 23, 1909 (Laws 1909, c. 202), contains but one subject, and its incidents, and is not a violation of sec. 21 of art. V of the constitution.!</p> <p>4. District Court-!-Jurisdiction. Sections 6000, 6006, of the Revised Statutes do not confer exclusive jurisdiction upon school district boards, or the- superintendent of education, to decide all controversies to which a school district may be party. Under Rev. Stat., sec. 6007, wherever a money judgment is demanded resort must be had to the courts, and the district court may entertain the action.</p> <p>5. Pleading — Defects of Form. In an action by one school district against another under the last proviso to c. 202, Laws 1909, the complaint should aver that the sum demanded was a necessary charge, or facts from which this conclusion may be drawn, should give the name of the pupil, and state that he possessed the necessary qualifications. Failure in this respect is one of mere form, and being assailable by motion will not be deemed fatal on appeal.</p> <p>6. Appeals — Harmless Error. Formal defects in the complaint which might be remedied by motion in the court below will not he held fatal on appeal where it does not appear that the defect could have preju-. diced the defendant.</p>

<p>Error to the Denver District Court. Hon. Gbeeley W. Whiteobd, Judge.</p>

<p>Error to Denver District Court. Hon. George W. Allen, Judge.</p>

<p>1. Bah — Forfeiture of Recognizance — Estoppel to Assert. After many continuances a criminal information was stricken from the trial calendar, and the surety of the accused was expressly told by the district attorney that it would never thereafter be called for trial. The district attorney had then power to nolle any prosecution, without the consent of the court.</p> <p>The bail, on the faith of the assurance so given by the district attorney, thereupon surrendered to the accused certain collateral which he had received, to indemnify him against liability upon the recognizance, and the principal left the state. Held that the statement of the district attorney was, in effect, leave to the accused to depart the court, and absent himself until lawfully required to return, and that the state was estopped to declare a forfeiture of the recognizance as against the surety. — Haney v. People, 12 Colo., 345, distinguished.</p> <p>The effect of such a stipulation of the district attorney, since the adoption of c. 73, Laws 1913, .not decided.</p> <p>2. Recognizance — Conditions Not Specified in the Statute, are not binding upon the surety. The condition that the principal “abide the order of the court” is of this character. Rev. Stat., sec. 1947.</p> <p>3. Practice — Oral Stipulation of Counsel Not Denied, is to be regarded as of equal force with a written stipulation. — Morse v. Budlong, 5 Colo. App., distinguished.</p>

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

<p>Appeal from Denver District Court. Hon. Gbeeley W. Whiteobd, Judge.</p>

<p>Error to Pu,eblo District Court. Hon. J. E. Bizer, Judge.</p>

<p>1. Tax Titles — Void Deed. A treasurer’s deed showing affirmatively but one offer for the lands, and a sale to the county on the day of such single offer, is void upon its face.</p> <p>2. -Deed Construed. A deed reciting that the treasurer did, on July 11th, at a sale begun, etc., on July 7th, expose'to sale the real property, etc., and the county having offered to pay the amount of taxes, etc., me property was stricken off to it, held void.</p> <p>3. -Limitation. A void deed does not set in motion the five years’ limitation.- (Rev. Stat., sec. 5733.)</p>

<p>1. Irrigation — Bight of Appropriator in the Means ■Provided for the Conduct of Water. As a stockholder in an irrigating company, the plaintiff had a right to receive therefrom- water for the irrigation of his land, and, hy long user, to conduct it through an open ditch located upon the lands of an individual defendant. Held that neither such individual defendant, nor the county, .nor the town where the premises were situated, was entitled to fill up or obstruct or destroy the open ditch, substituting another device therefor, without the consent of plaintiff, after full knowledge on his part, or until provision was made, satisfactory to plaintiff, that the change should not interfere with the supply of the volume of water theretofore enjoyed by him, or its distribution, and for the maintenance, in like manner of the substituted device, and compensation to plaintiff of all damages occasioned to him by failure in such engagements, and that the former conditions should be restored if the substituted device were found inefficient, or the agreement should not be complied with.</p> <p>2. -Irrigating Company — Duty to Stockholders. A corporation operating an irrigating ditch is without authority to consent to any change in its works or conduits, for the benefit of one stockholder, and to the prejudice of another, without the consent of the latter, after a full knowledge of what is proposed, and with whatever provision for his protection he may demand as the condition of such consent.</p> <p>The corporation is bound to see to it that the stockholder receives his proportion of the water with as little expense and inconvenience as if the change were not made, and without imposing upon him any increase in the cost of delivery, or any burden of maintaining or replacing the substituted device.</p> <p>3. - Waste Water. A corporation operating an irrigating ditch is not under duty to carry water in excess of its decreed appropriation; nevertheless, if there is at any time surplus water in the ditch, any stockholder having need thereof is equitably entitled thereto, even though it may be in excess of the allowance, to which, measured by his holdings in the stock, he is -entitled. And the stockholder having need of the water is entitled to complain if the corporation unnecessarily wastes it where it is of benefit to no one.</p> <p>4. Pleading — Demurrer. Failure to state in the complaint facts constituting a cause of action, or failure to show jurisdiction in the court, is ground of demurrer at any time, and it seems the defendant may demur ore tenus.</p> <p>5. -Demurrer in Answer. The practice of inserting a demurrer in the answer discountenanced.</p> <p>6. - Waiver. Misjoinder of causes of action not raised either by demurrer or answer is waived.</p> <p>So of defect of parties.</p> <p>7. Pasties — Defect of, must be raised by demurrer or answer, or is waived.</p> <p>8. - Defendant. One acting for a town in the transaction complained of should not be made defendant, but the town itself.</p> <p>9. Writ of Error — Judgment. In an equity cause the decree for the defendants being found erroneous was reversed, with directions to the court below to exercise a liberal discretion in allowing an amendment of the pleadings, the bringing in of a new party, and to receive, upon the second hearing, the evidence taken upon the first.</p>

<p>Limitations — Payment of Taxes — Statute Construed. Under the proviso of sec. 4090 of Rev. Stat., the owner of paramount title, in order to stay the course of the statute, must pay the taxes for one or more of the seven years next following the acquisition of color of title by the adverse claimant. Where one holding color of title pays all taxes upon the land for seven successive years, the payment of subsequent taxes by the holder of paramount title is of no avail.</p>