Volume 26 — Colorado Court of Appeals Reports

<p>1. Damages — Land Destroyed by Seepage — Future Crops. One who contends that his land was rendered utterly valueless by seepage; and demands as damages its full value, is not to be allowed for the loss of crops planted thereon in years subsequent to his having knowledge of this ruined condition. (5)</p> <p>2. -Duty of Plaintiff to Minimise His Injury. Plaintiff was aware in 1907 that his land was entirely ruined by seepage- Held, he was not t'o be allowed for the loss of crops planted in subsequent' years. (6)</p> <p>3. New Trial — Verdict Against Evidence. Plaintiff contending that’his land had been entirely ruined by seepage from defendant’s ditch was allowed the full value thereof. But there was evidence that in every year since such alleged injury he had planted it, and had, in some years, secured crops of some value; and was intending to continue to cultivate and-plant it in the future. A new trial was ordered. (7)</p> <p>4. Torts — Redress by Act of Parties. No one may lawfully construct his flume across the way of another’s ditch, without consent uf the other, and if he does so the owner of the ditch may remove it. (8)</p>

<p> On Re-Hearing. </p> <p>1. Pleadings — Amendments—Liberality to be Exercised. Courts should be very liberal in allowing amendment's to answers. A new defense may be admitted as an amendment. (14)</p> <p>Defendants had executed an agreement admitting the validity of certain patents for an invention, claimed by the assignor of plaintiff, and past infringements thereof, covenanting not t'o infringe the same in future, and in case of such future infringement, to pay $500 as liquidated damages for such past infringements. Action to recover the $500.00. Defendant was permitted to put in a supplemental answer to the effect that the. agreement was entered into on the faith of plaintiffs’ representation that the patent's were valid, etc., whereas defendant had since ascertained that they were without validity, and that plaintiff had no valid patent or monopoly. (13, 14)</p> <p>2. Motion to strike. Waives all grounds not alleged. (44;</p> <p>3. Bill of Exceptions — When Necessary. The court of review may, in furtherance of justice, give relief against an error of the court below, even though no exception is reserved. (14)</p> <p>4. Appeals — Errors Not Assigned, may be considered and corrected when justice requires- (14)</p> <p>5. Patent for Invention — Validity—Jurisdiction of the State Courts. The courts of the state may try the validity of a patent for an invention. (13)</p> <p>6. Contracts — Penalty or Liqtiidated Damages. Whether a sum named in a contract is liquidated damages or a penalty depends, not merely upon the words used, but the nature of the contract, the situation of the parties, and the attending circumstances. (15)</p> <p>In general, where the stipulation is to pay a sum in gross for the non-performance of an agreement, the sum will be regarded as a penalty-So where the strict enforcement of the contract will work oppression. So if a gross sum is to be paid in case of the breach of any one of several covenants of different degrees of importance. (15-19)</p> <p>Defendants had been manufacturing and selling a compound for closing punctures in pneumatic tires. They executed a writing admitting the validity of certain patents held or claimed by the assignor of plaintiff, conferring the exclusive right, etc., admitting the infringement thereof in the past, and covenanting not to further infringe, etc., and in case of the violation of this covenant to pay, “as liquidated damages, not as a penalty,” the sum of $500 for the past infringements. Action to recover the $500.00. There was n® attempt on the part of the plaintiff to show what sales of the infringing substance had been made by defendants prior to the date of the contract, and the instrument referring to the damages occasioned by the infringement as only “considerable;” held, that the manifest purpose of the. agreement was to coerce respect for the patents, and for this reason, and because, literally interpreted, the defendants would be liable in the full sum 'of $500 for an infringement, involving only nominal damages to the other party, the $500 must be regarded as a penalty. ‘</p> <p>7. Evidence — Opinions. A witness testified that in his opinion the damage sustained by the owner of a particular patent, by reason of the infringement thereof were impossible of computation. Held mere conjecture and of no legal efficacy. (17)</p>

<p>Broker — Right to Commissions. A broker employed by the owner of lauds to find a purchaser therefor is not entitled to a commission unless he was the procuring cause of the sale. The evidence examined, and held that 4he broker, though he assisted in the sale was not the procuring cause thereof. (23)</p>

<p>County Commissioners — Proceedings—Record,. A record is not always required to render the procedings of the Board of County Commissioners binding. (29)</p> <p>And where question arises as to their action a liberal discretion should be exercised in receiving evidence of the attending circumstances, to aid in ascertaining the real purpose of what is set down. (27)</p> <p>The statute (Rev. Stat'., secs. 1215, 1216) provides that the Board of County Commissioners shall at the time of the annual levy of taxes pass a resolution which shall appropriate such sum or sums as may be deemed necessary to defray all expenses and liabilities for the next', fiscal year, and specify the objects and purposes for which appropriations are made, and the amount appropriated for each purpose; that no further appropriation shall be made at any other time within such fiscal year; and that neither the board nor any officer of the county shall add to the county expenditures anything over and above the amount provided for by such resolution.</p> <p>The only resolution of the board which could be termed an appropriation, directed levies upon the taxable property, etc., as follows: “For State Purposes, 4 mills; for County Redemption Fund, 5 mills; for County General Revenue, 10 mills; for Road Fund, 4 mills; for General School Fund, 4 mills — the same to be extended on the tax roll by the county assessor, and by him certified to the county treasurer for collection.” Held that warrants regularly issued for unquestioned obligations of the county, and paid by the treasurer were to be credited to him in his account, in spite of the absence of any formal appropriation resolution, such as required by the statute; ’that the treasurer was not to be penalized for the omissions of the governing body of the county. (29-32)</p>

<p>1. Mining Claim — Discovery in Abandoned Ground. The location of a lode mining claim must be within the unappropriated land of the public domain. One who has located a mining claim may abandon a portion of it, and may, by a discovery within the part so abandoned, effectually locate another claim. (42, 43)</p> <p>2. - Location — Notice. The notice required by Rev. Stat-, sec. 4197 serves a temporary purpose. Its utmost life is sixty days. 'In construing the_ sufficiency of such notice the courts adopt the most liberal rules. The notice being written upon a piece of paper, folded so that no part of the writing appeared, laid upon a stone and held in place by another st'one, held sufficient, though no other notice so far as appears, was ever posted. (47)</p> <p>3. —Abandonment—Evidence. Abandonment of a mining claim in the public domain may be proven by the acts of the locator, as well as his declaration. (43)</p> <p>4. -Effect. Where a mining claim, or any part of it, in the public domain, is abandoned by the locator, without improper motive, what is so abandoned immediately becomes part of the public domain. Semble, otherwise as to a simulated abandonment, with intent to avoid performance of the annual labor, and so prolong the locator’s right, without compliance with the statute (Comp. Stat. U. S. sec. 2324). (43, 44)</p>

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

<p>Appeal from Denver District Cou-rt. Hon. Hubert L. Shat-tuck, Judge.</p>

<p>Error to Denver District -Court. Hon. Greeley W. Whit-ford, Judge.</p>

<p>1. Appeal and Error — Law of the Case. The judgment of the Supreme Court is, both as to matter of fact, and matter of law, conclusive upon a subsequent writ of error, in the same cause, removed to this court. (68)</p> <p>2. Fraudulent Conveyances — Improvements Made by Purchaser ivith notice, of the fraud, and without necessity, are made at his peril. (69, 70)</p> <p>3. -Mortgage by Fraudulent Grantee — Subrogation. As a general rule where a purchaser’s title fails, he will be subrogated to the right of the holders of prior encumbrances which he has paid, or which have been discharged out of the purchase money.</p> <p>But a fraudulent grantee who knowingly participated in the fraud has no standing in the court' of equity, and will not be subrogated, or in any way protected as to moneys paid by him to discharge liens existing at the date of the fraudulent purchase. (70, 71)</p> <p>Terrill purchased lands of Dickenson. Part of the purchase price was represented by a mortgage to Dickenson. Terrill afterwards conveyed the lands to his wife, without consideration, and for the sole purpose of defeating the just claim of a creditor. Alley subsequently purchased the lands from the wife of Terrill, with constructive notice of the fraudulent character of her title, but without actual notice of the fráud, and acting in entire innocence. His title being vacated on bill brought by the creditor, he was allowed moneys paid by him to discharge the mortgage to Dickenson. (71, 72)</p> <p>But he was denied any allowance for moneys paid to discharge a mortgage executed by Terrill’s wife, after a judgment recovered by the creditor had become a lien upon the land-</p> <p>4. Notice — Facts Putting Upon Inquiry. One who purchases' lands with notice of facts which put him upon'inquiry as to the title of his grantor is chargeable with .notice only' of those facts which diligent- inquiry on his part would have developed.</p> <p>The _ conveyance to his grantor' having been made in fraud of creditors, it is not to be assumed that those participating in the fraud would have confessed their turpitude. (72)</p> <p>5. Precedents — Effect. The general language of a judicial opinion is to be read in connection of the facts of the particular case. (73)</p>

<p>1. Fraud — Rescission of Contract for. Where, in an equitable action to rescind a contract, actual and intended fraud is relied upen, the same rules apply as in actions at law for deceit. (103)</p> <p>2. -Definition. Actionable fraud is the false representation of _ a material fact, as distinguished from opinion, made with knowledge of its falsity, or recklessly, without belief in its truth, with intent to induce action by the complaining party, and accepted and acted upon by him, as true, to his iniury. (104)</p> <p>The statement of one offering corporate shares for sale or exchange, that “the stock is good so far as I know,” he having no peculiar means of knowledge as to the matter, is a mere expression of opinion, .and not to be relied upon as a representation. (105)</p> <p>3. -False Representations Not Relied Upon, by the party to whom they are made, he making independent investigation, affords no action, except in cases of active fraud or concealment, or when fiduciary relations exist, or where 'peculiar knowledge on the part of the one making the representation is shown. (106)</p> <p>4. Appeals and Writs of Error — Finding on Conflicting Evidence— Depositions. Where all material evidence for the successful party is by deposition, the court of review is not governed by the usual rule that findings upon conflicting evidence are conclusive. (107)</p> <p>5. - Judgment. Plaintiff sued to vacate a conveyance of lands, on the ground of actual and intended fraud. A decree in his favor reversed without prejudice to another action on the ground of mutual mistake. (108)</p>

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

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

<p>1. Trials — Non-Sidt, is to be granted only where there is an entire absence of testimony, (us)</p> <p>2. --Motion for Non-Suit, admits the truth of the evidence produced by the plaintiff, in the sense most unfavorable to defendant, and every infdrence of fact legitimately deducible therefrom. (116)</p> <p>3. Corporations — Transfer of Stock — Action to Compel. One holding shares in a corporation, by transfer, delivers the certificate evidencing such shares to an officer of the corporation, in order that the same may be transferred to his name, upon the corporate books, and a new certificate issued accordingly. The officer causes the transfer to be made to himself and other officers of the company.</p> <p>Semble the shareholder is entitled to a bill in equity against the corporation, and the officers thereof in their official capacity, to correct the wrong. (114, 116)</p>

<p>Error to Denver District Court. Hon. Greeley W. Whit-ford, Judge.</p>

<p>Error to the Kiowa District Court. Hon. C. S. Essex, Judge.</p>

<p>Error to Lincoln District Court. Hon. W. S. Morris, Judge.</p>

<p>Error to the Denver District Coitrt. Hon. James H. Teller, Judge.</p>

<p>1. Evidence — Title to Lands — Receiver’s Receipt. A receipt for the purchase money of lands issued byt the receiver of a land office of the United States is prima facie evidence of title to the lands iherein described. (Rev. Stat. sec. 2494.) (133)</p> <p>2. Patent — For Lands — Relation. A patent for lands purchased of the United States relates to the entry, and is conclusive evidence of compliance by the entryman with all the requirements of the federal statutes. (i33)</p> <p>3. Irrigation District — Lands Held by Receivers Receipt, no patent having issued may be embraced therein. (13s)</p>

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

<p>County Court — Fees of Stenographer. Under Rev. Stat. secs. 1562-1564 the Board of County Commissioners have exclusive control of the question whether a stenographer shall be appointed for the county court, and of his compensation. A resolution authorizing such appointment, and prescribing a monthly salary, “to be paid out of the ‘County Judge Fee Fund’ ” not being assailed upon the ground that the statutory direction for a per diem was disregarded, was held valid in its entirety. A payment made by the county judge to the stenographer, in excess of the County Judge Fee Fund was held a voluntary payment and not to be recovered. Airy v. The People, 21 Colo. 144, and Blanchard v. Chaffee County, 15 Colo. App. 410, distinguished. (142, 143)</p>

<p>Error to Kiowa District Court. Hon. C. S. Essex, Judge.</p>

<p>Error to Kiowa District Court. Hon. C. S. Essex, Judge.</p>

<p>Error to Huerfano District Court. Hon. Henry Hunter, Judge.</p>

<p>1. Mechanic’s Liens — Mining Property. Mechanic’s liens asserted against mining properties are governed by the same rules which control liens upon real property of other character (Rev. Stat. sec. 4028). (158)</p> <p>2. -Improvements by Lessee. A lease and bond of a mine containing no provision for the erection of buildings, or for any improvement save that incidental to active mining, does not authorize the lessee to impose a lien upon the premises for materials furnished for enlarging and equipping a mill situate thereon. Clark Co. v. Centennial Company, 22 Colo. App. 174, explained. (160)</p> <p>3. -Improvements Made With Owner’s Knowledge. One seeking to enforce a lien under Rev. Stat. sec. 4029 for improvements made with the knowledge of the owner, must both allege and prove s.uch knowledge, and further that the materials for which the lien is claimed were furnished to be used in the particular improvement in question, and notice to the owner of such intended use. (161)</p> <p>An allegation that “at the time of furnishing said supplies defendant had full knowledge and notice thereof” is not sufficient. (161)</p> <p>4. -Lien for Material. One seeking to enforce a lien for material must prove a mutual understanding existing at the time of the delivery, that the material is to be used for the particular structure or improvement in respect of which the lien is claimed. (158)</p>

<p>Error to Rio Grande District CourL Hon. Chas, C. Holbrook, Judge.</p>

<p>1. Evidence — Presumptions. Each of the members of a partnership took out a policy of insurance upon his life, in favor of the firm. It was presumed that the two were in. similar terms. (172)</p> <p>2. Life Insurance — -Insurable Interest. The partnership has an insurable interest in the life of each partner; but upon the dissolution of the firm such interest terminates. (181)</p> <p>3. - Construction of Policy. A policy of insurance upon the life of .one of the members of a partnership named the firm as the beneficiary, with the addition “or if the insured survives the aforesaid beneficiaiy, to the administrators of the insured.” Held, that upon the dissolution of the partnership- the personal representative of the insured partner was, ipso facto, substituted as the beneficiary in the policy. (178)</p> <p>4. Partnership — Dissolution—Partnership at Will. A partnership at will may be dissolved by either partner, at his pleasure, at any moment. The mere withdrawal is, in law and in fact, a dissolution. (178)</p> <p>Two partners entered into an agreement of dissolution. One was made the trustee, for “winding up the affairs of the dissolved partnership ;” the authority of the other to check against the bank account was revoked; an arbitrator was appointed to adjust their differences; and each partner engaged in business on his own account, taking on no new business on account of the firm-, The agreement provided that certain contracts previously taken by the firm should be “completed by both .parties * * * exactly as if the partnership was still existing.” Held, that the firm was dissolved at the date of this agreement. Held further, that, no creditor of the firm having, so far as appeared, any notice of the execution of the policy of insurance on the life of one of the partners, subsequently deceased, nor having extended any credit on the face of such policsr, the surviving partner should not be heard to assert, as the representative of creditors, a claim for the insurance, money; but that, -in the adjustment of the partnership affairs he would be entitled to credit for premiums which he had paid upon the policy. (178, 180, 181)</p> <p>5. Contracts — Construction. An ambiguous agreement is to be construed in the light of the subsequent conduct of the parties. (179)</p>

<p>Error to Denver District Court. Hon. Greeley W. Whit-ford, Judge.</p>

<p>Error to Weld. District Court. Hon. Neil F. Graham, Judge.</p>

<p>Appeal and Error — Findings Upon Conflicting Evidence, conclude the court of review. (191)</p>

<p>Error to Denver District Court. Hon. H. L. Si-iattuck, Judge.</p>

<p>Error to Logan District Court. Hon. H. P. Burke, Judge.</p>

<p>Appeal from Weld District Court. -Hon. James E. Garrigues, Judge.</p>

<p>1. Evidence — Possession of Lands Bill to Quiet Ttitle. A -warranty deed, executed by one in póssession, purporting to convey the lands, in fee, to plaintiff, with possession following thereunder, is prima facie evidence of title in fee in the plaintiff, and casts upon the defendant the burden of dispelling the prima facie title so exhibited. Clark v. Huff, 49 Colo. 197, distinguished. (213)</p> <p>2. Quieting Title — Plaintiff’s Title. Plaintiff is not required to show a perfect indefeasible title; but he must' show both possession and a prima facie title. (213)</p> <p>The declaration in Lougee v. Wilson, 24 Colo. App. 71, that upon plaintiff’s proof of possession, or constructive possession, the burden is upon defendant to Drove title, as in ejectment, declared obiter, and reconsidered. (217, 218)</p> <p>Mitchell v. Titus, 33 Colo. 386, Eagan v. Mahoney, 24 Colo. App. 285. Mitchell v. Trowbridge, 47 Colo. 6, explained. (217)</p>

<p>1. Summons — Requisites—Statement of Demand. Under Secs. 36, 41, of the Revised Code a summons not stating the sum demanded, but that the action is “brought to recover salary for services as foreman,” at a mill- named, during a period, mentioned, and referring to the complaint for a more particular statement, is sufficient to sustain a judgment entered by the court, upon evidence heard, after a default entered by the clerk. Whether sufficient to sustain a judgment' by default, entered by the clerk. Query? (221, 223)</p> <p>2. Statutes — Construed. Where the clerk merely enters the default lof the defendant, the first clause of sec. 183 of the code has no application. (224)</p> <p>Where there is upon file a verified and sufficient complaint, and the defendant has been duly summoned, and fails to answer within the time allowed to him, the court has full control of all subsequent proceedings, and though no sum is named as demanded in the summons, may give judgment in favor of plaintiff for the amount to which he is entitled, not, exceeding what is set down in the complaint.. The provisions of sec. 185 of the code empowering the clerk to enter judgment by default in certain actions were not intended t'o impair the powers of the court. (224)</p>

<p>Error to Washington District Court. Hon. H. P. Burke, Judge.</p>

<p>Error to Washington District Court. Hon. H. P. Burke, Judge.</p>

<p>Error to Garfield District Court. Hon. John T. Shumate, Judge.</p>

<p>Error to Denver District Cowrt. Hon. J. W. Sheafor, Judge.</p>

<p>1. Evidence — Admissions—By Conduct. One for whom another, without authority, has assumed to act must not only disavow and repudiate what has been done, but must also give notice of such repudiation to those to be affected thereby, if he would avoid the inference of assent, which the court or jury are otherwise at liberty to indulge. (248)</p> <p>2. Corporations — Affected by Knowledge and Conduct of Officers and Directors. The president and treasurer of a corporation borrowed of a bank, in the name of the corporation a sum of money which they applied to discharge, a judgment against the corporation and the treasurer.</p> <p>The bank having brought its action upon the promissory note of the corporation which was executed by the president and treasurer to evidence this loan, the corporation contended that the judgment had been recovered for an individual liability of the treasurer, and that if had been collusively permitted by the president and treasurer, in order to satisfy the individual liability of the treasurer, at the expense of the corporation. But it appeared that during the pendency of the action in which this judgment was recovered, at least seven out of the thirteen directors of the corporation, its president, secretary, executive committee, and general counsel, had knowledge thereof, and made no question as to the propriety of its position as defendant; that the judgment came to the knowledge of the secretary, who was also a member' of the board, and of the executive committee thereof, and was “generally known about the office of the company;” that at least one of the directors, and the secretary, who was also a director, knew of the loan, and the purpose to which the money was applied, and that no action was taken at the time to repudiate it. In view of these and other circumstances tending to show authority in the president and treasurer to borrow money in the name of the corporation it was held that the directors had, or should have had, full knownledge of the action of its officers in the premises, and that whether their conduct in permitting it to stand unquestioned was attributable to mere inattention, or to some other cause, the corporation was as fully bound towards those who acted without knowledge of any want of authority in the corporate officers as if the requisite power had been directly conferred. (245-248)</p>

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

<p>Appeal from' Denver District Court. Hon. Greeley W. W.HITFORD, Judge.</p>

<p>Error to Denver District Court. Hon. Greeley W. Whit-ford, Judge.</p>

<p>1. Fraud — Evidence. A charge of fraud must be supported by positive, clear and convincing evidence. (275)</p> <p>2. -- False Representations to which Defendant was not a Party:</p> <p>Everist negotiating with Drake for the change of the lands of Drake for certain promissory notes of one Matzik, made certain representations as to the value of these notes. Held, that others, who, at a later date, in association with Everist, induced Drake to part wih the Matzik notes, were not chargeable for the representations made by Everist on the first'occasion. (283)</p> <p>3. - Expressions of Opinion as to Vahie. Parties dealing at arm’s</p> <p>length about' a proposed exchange of promissory notes are not chargeable with fraud for mere expressions of opinion as to the value of the notes. To sustain the charge in such case it must appear, in addition to the exaggerated statement of value, that the party complaining, though using reasonable prudence and caution, was fraudulently tricked into reliance upon such false statements. (277-280)</p> <p>One who purchases promissory notes secured by mortgage of lands, without examination of the lands, having opportunity to do so, and not being induced to .omit such examination by any trick of the vendor, cannot rely upon exaggerated statements made by the vendor to support a charge of fraud. (278)</p> <p>The evidence examined and held insufficient to sustain plaintiff’s action. (276, 277)</p> <p>4. Damages — Elements. Action for fraud in inducing plaintiff to accept promissory notes of one H., for promissory notes of one M. The damages are measured by the difference in value between the two sets of notes. (283)</p>

<p>Error to Rio Grande District Court. Hon. Charles C. Holbrook, Judge.</p>

<p>1. Attachment — A Legal Remedy — Statutes Strictly Construed. An attachment is a special remedy of law, except where authorized by statute in equitable causes. (287, 288)</p> <p>And the code provisions (Rev. Code secs. 98, 99) are strictly construed- (287)</p> <p>2. - Affidavit, must show an indebtedness. (288)</p> <p>The complaint alleged that defendants represented that one Glasgow would be. with plaintiffs and defendants, one of the purchasers of -a horse, and bn the faith of this promise, and the further promise that if Glasgow should not sign the promissory notes for the purchase money, subscribed by plaintiffs, it should be returned and cancelled; that, in fact, Glasgow had taken no interest in the horse, had never signed the notes, and that defendants had refused to return them and plaintiffs feared that defendants would negotiate the notes. Held that these averments constituted the basis of a suit in equity; that neither of the notes having been paid by plaintiffs no indebtedness from defendant's to plaintiffs existed. (287, 288)</p> <p>3. Promissory Note — Delivery on Condition, that it is not to be obligatory until subscribed by a third person is void in the hands of the original payee, if the condition is not performed. (288)</p> <p>In an equitable suit for the purpose it is proper to decree surrender of the notes, which is equivalent to a cancellation, in the hands of defendant's. (289)</p> <p>But judgment for the amount thereof was reversed, without prejudice to any right of action then existing, or any supplemental pleading allowed according to law. (289)</p>

<p>Error to Denver District Court. Hon. John A. Perry, Judge.</p>

<p>1. Evidence — Measure of Proof Required. About ten days previous to the injury complained of defendant’s employes had left upon the margin of the street, a steam roller and the coal wagon used with it. As plaintiff was driving upon the street about 5. P. M. on the 18th of November, the horse, near the steam roller, veered from the street to the curbing ; the buggy was upset, and plaintiff and another lady 'with her, were thrown out. The horse himself escaped, but was afterwards captured, with the buggy and harness badly damaged. Plaintiff had not seen the st'eam roller before the accident or afterwards. Immediately before, or at the instant the - horse bolted, the other lady exclaimed, “O, what’s that.” This exclamation, or what occasioned it, was not explained. The only occupants of the buggy were the plaintiff, the other lady, and two children whose ages were not shown. No attempt was made to show that the misconduct of the horse could be attributed only to fright at the presence of the roller. The other lady, although within the state, was not called. The inference that the presence of the steam roller loccasioned the fright of the horse, if he was frightened, it was said, was therefore based wholly on presumption, while the facts shown would as reasonably warrant a different inference. It was held therefore that inasmuch as mere theories and inferences do not authorize a verdict in causes of this character, unless the conclusion of liability is the only one which can reasonably be diawn from the facts proven, the plaintiff had failed. (291-293)</p> <p>2. Presumptions — Upon Presumption. One presumption is not to be founded upon another. (294)</p> <p>3. Damages — Pleading as to. Action for personal injuries. There was no allegation of medical expense, nursing, or loss of time. An instruction to make an allowance on account of any of these matters was held error. (294, 29s)</p> <p>So as t'o an instruction to allow plaintiff for any loss of power to earn money, there being no allegation upon the subject. (293)</p> <p>4. Pleading — Negligence Occasioning Fright of Plaintiff’s Horse. The complaint should allege that the horse was an ordinarily gentle animal. (296)</p> <p>3. Judicial Notice — Not Taken, that a steam roller standing unused on the margin.of a street is calculated to frighten an ordinarily gentle horse. (297)</p>

<p>Error to El Paso> District Court. Hon. J. E. Little, Judge.</p>

<p>1. Negligence — Circumstantial Evidence, is sufficient to establish; direct evidence is not required. (315)</p> <p>2. - Evidence — Sufficiency. Action for the death of one employed in a coal mine, attributed to negligence of the mine owner in failing to provide places of refuge, along the slope where the cars were operated for removing the coal, and the employes were wont to pass in going to and'from the lower workings; also in failing to provide proper appliances to .prevent the escape of cars into the slope.</p> <p>Evidence examined and held sufficient to warrant a verdict for plaintiff. (306-315)</p> <p>3. .Appeals and Error — Verdict on Conflicting Evidence, is conclusive in the court of review. (315)</p> <p>4. Attorney — Misconduct. Action against a mining company for negligence causing the death of an employe in the mine. Plaintiff’s counsel, in the examination of a juror on the voir dire asked if he was acquainted with the counsel appearing for the company, “who,” he said, “represent the Ocean Insurance Company in this case.” This assertion of counsel was a mere assumption, not justified by any evidence, and, as the court concluded, was an attempt to impress the jury with the idea that a verdict against the defendant would not be injurious to it. The court denounced it as “very reprehensible,” justifying a reversa! of a judgment in favor of plaintiff, where the evidence was equally balanced, or it appeared probable that the irrelevant matter so improperly brought to the attention of the jury had exercised a controlling influence in their deliberations. (316)</p>

<p>1. Master and Servant — Master's Liability for Acts of Servant. A master is liable for the negligence of the servant occurring when the servant is acting within the scope' of his employment. The purpose of the act in which! the servant is engaged when the negligence occurs, rather than the method of its performance, is the test of the master’s liability. One employed in a public garage was sent to obtain a battery which had been left with another establishment to be charged. Against the express prohibition of the master he took from the garage, for this mission, the auto car of a patron of the garage which was stored there, subject to the call of the owner. While returning with! the charged battery he negligently ran upon and injured the plaintiff. Held that the servant was acting within the scope of his employment. (326-329)</p> <p>2. -- Deviation of the Servant About His Own Affairs. The liability of the master is not affected by a slight deviation of the servant for his own ends, when about the business of the master. (332)</p> <p>The servant, prior to the accident, and after he had obtained that for which he had been sent, had gone upon an errand of his own. The jury having found that the accident occurred while the servant was acting within the scope of his employment, the finding was approved. (332)</p>

<p>1. Pleading — Judgment on the Pleadings, should be granted only where this must be the ultimate result, whatever may be the findings upon the facts. (336)</p> <p>Defendant's had leased to plaintiff a' store building then in course of construction, and executed to him a writing substantially in these Words: “We bind ourselves in the sum of $1,500.00 that the store leased by us to H. B. Kline will be completed on or- before, etc., and that said Kline will be given possession thereof as'soon as completed; this guarantee to be void if possession is given within the time specified, otherwise in full force, and said sum of $1,500.00 is to be paid to said Kline.” Judgment on the pleadings in favor of plaintiff. No reason moving the court to such judgment appearing in the record, held that it must have been given upon the assumption that the moneys set down in the writing constituted, in . law, liquidated damages, and that as this assumption was inadmissible, the judgment was erroneous. (337, 338)</p> <p>2. Contracts — Construction—Penalty or Liquidated Damages. If a writing assumes the form of a bond, with a condition that it shall be void on .the performance or non-performance of some collateral thing, the presumption is that it is intended as a mere security, and not as a liquidation of damages. Very strong evidence is required to overthrow this presumption. (337)</p> <p>* So, in general, a sum of money in gross to be paid for the nonperformance of an agreement is considered a penalty. One contending that such sum was intended as liquidated damages has the burden of showing that this was the intention of the contracting parties. (337)</p> <p>The question is to be determined by considering the nature of the contract, the situation of the parties and the attending circumstances-; not merely upon the language used. (338)</p>

<p>Error to the Rio Grande District Court. Hon Chas. C. Holbrook, Judge.</p>

<p>1. Habeas Corpus Act — Construed. The habeas corpus act (Rev. Stat. c. LXI.) "was enacted peculiarly, if not solely, to provide for the discharge of those illegally detained upon' a criminal' accusation, or in a civil action for tortious misconduct, and does not take away the common law writ where the restraint complained of is a mere incident to the right of custody of the person restrained, and the future disposition of such person is to be adjudicated, e- g. where the parent seeks the custody of his infant child. (343)</p> <p>2. - Jurisdiction of County Court. Habeas corpus by a parent, demanding the; custody of his infant child, is, under the statute (Rev. Stat. sec. 1326) within the jurisdiction of the County Court. (346, 347)</p> <p>3- - Appeal. An appeal lies from th’e County Court to the District Court. (Rev. Stat., sec. 1336). (347)</p>

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

<p>Error to Rio Grande District Court. Hon. Chas. C. Holrook, Judge.</p>

<p>1. Sunday — Election Notice Posted Upon. The notice for a school district election, upon the question of issuing bonds for raising funds to construct and equip a school-house, may be effectually posted upon a Sunday. (364)</p> <p>2. Elections — Substantial Compliance with Statute. An election to determine whether a school district shall issue its bonds for a purpose authorized by statute will not be invalidated by technical irregularities, no prejudice to any person appearing, e. g. the failure to publish the notice of the election for the full time prescribed by statute; or the failure of the school board, who acted as judges of the election, t’o certify to themselves the result of the election, before canvassing the vote, as expressly required by statute (Laws 1909, c. 205, sec. 7). (365)</p> <p>3. Maxims — Lex non cogit ad vana. The statute expressly required the judges of certain school district elections to certify the result to the Board of Directors of the district, and provided that the board should, "after receiving such return,” canvas the vote and determine the result of the election. (Laws 1909, c. 205, sec. 7) The directors having themselves acted as judges of the election, their failure to certify to themselves what was already within their knowledge had not the effect to invalidate the election. (365, 366)</p>

<p>Appeal from Denver District Comrt. Hon. Geo. W. Allen, . Judge.</p>

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

<p>Error to Larimer District Court. Hon. Neil F. Graham, Judge.</p>

<p>1. Action — Legal or Equitable. Where, upon the facts alleged in the complaint, a money judgment affords full relief, allegations of fraud, abuse of confidence and the like, do not have the effect t'o convert the cause into one of the equitable jurisdiction. It is still to be regarded as an action at law, though equitable relief is prayed. (393)</p> <p>2. Pleadings — Frame of Complaint — Prayer. Plaintiff is entitled to such relief as the facts alleged and established warrant, regardless of the prayer, or the frame of the complaint. (394)</p> <p>3. Parties — Misjoinder of Plaintiffs — Effect. Under the code the fact that one of those joined as plaintiffs has no right "does not defeat even an action at law. Those entitled may have judgment, the cause being dismissed as to the other plaintiff, or judgment given against him if the facts demand it. (403)</p> <p>4. Judgment — Rights of Several. It seems from Jones v. Perot, 19 Colo. 141, that the ultimate rights of the parties between themselves, respectively, may be determined in one judgment, whether they have equal or different interests in the subject matter of the litigation. (404)</p> <p>5. Fraud — Remedies. Defendant having acquired from the owners of certain mining claims, situate in the State of Nevada, a bond for deed, or an agreement of sale therefor, for the price of $625.00, represented to plaintiffs that the claims were of immense value and could be purchased, but named the price at $25,000. Plaintiffs all resided in Pennsylvania, but had been associated in business with defendant', and. he enjoyed-, their absolute confidence. One of them only, through whom defendant corresponded, and who played the part' of a stool pigeon, knew the facts.. Acting upon defendant’s representations plaintiffs agreed with him for the' purchase of the mining claims on joint account of all parties. The sum of $25,000 was raised upon th'e joint note and remitted to the plaintiff; who consummated the purchase, paying for the property the sum of $625.00 and retaining the residue, except a portion thereof, which he paid to his confederate. Held that defendant heid the difference between th-e two sums as trustee for plaintiffs; that upon discovery of the fraud plaintiffs might have repudiated the entire transaction,’ placed defendant in statu quo, and sued in tort for their damages; .or might waive the tort and bring an action in the nature of indebitatus assumpsit, to recover the excess in defendant’s’ hands. (407)</p> <p>Held, further, that the confederate, by whose aid in conducting the correspondence defendant was enabled to accomplish the fraud, was liable to the innocent plaintiffs for whatever of the proceeds of the fraud had come to his hands, even though he made no representations as of his own knowledge, but only served as the emissary of defendant t'o convey the false representations of the latter to his associate.s. (407)</p> <p>Held, further, that the form of the action against him was of no moment. (408)</p> <p>6. Contract — By Correspondence. Held, in the same case that defendant’s letters to his confederate, by means of which plaintiffs were deceived and misled, some of which letters the confederate was instructed to exhibit to plaintiffs, and in others of which it was left to his discretion to exhibit or with-hold them, created contractual relations between defendant and the injured plaintiffs, with the same effect as if defendant had corresponded directly with the latter. (408)</p> <p>7. Waiver — Of Order Dissolving Attachment Defendant having obtained an order dissolving an attachment afterwards stipulated that the issues in the main cause, as -well as those framed upon the traverse of the affidavit in attachment should be tried at the same time. Held, that !he thereby waived the order dissolving" the attachment, and all rights thereunder.’ (409, 410) '</p> <p>8. ’ Evidence — Presumptions. And the presumption was indulged that the traverse had been.duly filed, though nowhere appearing in the record. (4.10)</p> <p>9. Attachment — Erroneous Dissolution. Plaintiff’s action, being in: the nature of indebitatus assumpsit for money obtained by fraud, and the complaint being sustained by sufficient evidence, a dissolution of the attachment is reversible error. (410, 411)</p> <p>10. Appeal and Error — Documentary Evidence — Effect. The evidence establishing plaintiff’s right, being entirely documentary, the court entered judgment according to its own view of the matter. (411, 412)</p>

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

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

<p>1. Schools — Teacher—Employment of Disqualified Person. Under Rev. Sfat., sec. 5990, the contract of a school district to employ as a teacher a person having no license to teach, is absolutely void. It binds neither party and requires no revocation. (434, 435)</p> <p>The mere fact that the person employed secured a license before the term appointed for her labors to begin, makes no change in the, rule.</p> <p>Otherwise, if, being so qualified, she is permitted by the school board to proceed with the performance of her contract. Hotz v. School District, 1 Colo. Ap. 40, and School District v. Ross, 4th Colo. Ap. 493, distinguished. (436)</p> <p>That the school board neglected to notify the teacher that her employment had been revoked, until the day before the term of her employment was to begin, held immaterial. (438)</p> <p>2. —*— Money Paid for Services Rendered by Disqualified Person. Where one who has a proper certificfiate at the commencement of her service, which expires before the expiration of the term oí her employ^ ment, is permitted by the board to continue until the end of the term, and is paid for such service, the payment cannot be recovered — the parties are in pari delicto. (437, 438)</p> <p>3. Statute of Frauds — Contract Not to Be Performed Within One Year. Verbal contract made in April for the employment of a teacher, her services to begin in the next September, and continue till the May following, is void. The year commences with the making of the contract. (437)</p>

<p>Error to Garfield District Court. Hon. John T. Shumate, Judge.</p>

<p>1. Party — Who Is. Mrs. Ellis, having recovered a judgment against Gibbons, levied her execution upon certain shares of corporate stock, as the property of Gibbons. Gibbons had previously pledged the stock, but had obtained a decree entitling him to redeem from the pledge. Subsequent to the levy of Mrs. Ellis’ execution, Gibbons assigned the stock to Bordeleau, and Gibbons and Bordeleau interposed a motion in the case in which Mrs. Ellis had recovered judgment, to- quash her levy. No objection was taken below to the appearance of Bordeleau in this motion. Upon this ground, and 'because the relief which he sought by his motion vsjas precisely the relief which would have been awarded to him if he had formally intervened, with success, he was regarded and treated, upon error brought, as a proper party below; though it was said that he should have proceeded by bill in equity, or by petition in intervention. (447, 448)</p> <p>2. Appeal and Error — Where Error Lies — Final Judgment. An order quashing the levy of an execution upon corporate stock is of the same effect as a decree obtained by an equitable suit, or by petition in inter¡vention; and one who in this irregular manner obtains such relief, will not be heard to question the right of his adversary to a review of the order, upon error. Levy upon corporate stock standing upon the books of the corporation in the name of another than the execution defendant. Also, cotemporaneously with the levy, garnishee process served upon the corporation, and an answer showing that the execution defendant iwas entitled in equity to certain shares in the corporation. An order quashing the levy operates prima facie as a discharge of the garnishee and is therefor reviewable upon error by the express provisions of the-code (Mills’ An. Code, sec. 141, Rev. Code, sec. 157). (458-460)</p> <p>3. Execution- — Equitable Interest in Corporate Stock Leviable. Sections 4167, 4172, Mills Stat. (Rev. Stat., secs. 3617, 3622), and sec. 140, Mills Code (Rev- Code, sec. 156) are to be considered as in pari materia. The interest of the pledgor in corporate stock may be taken in execution in the manner prescribed by these provisions of the’ statute, even though nothing appears in the books of the corporation to show such interest. (461-464)</p> <p>The stock is leviable, even though the pledgor’s right is evidenced by an equitable decree, from which an appeal still lies. (464, 465)</p> <p>The shares are not, after such decree, in custodia legis. It is not necessary for the sheriff to disturb the pledgee’s possession of the stock certificate, nor need notice of the levy be given to the execution defendant. (466)</p> <p>Complying with the statute such possession as is possible, and such as is contemplated by the statute, is secured. (463)</p> <p>The proceedings taken by the creditor set forth, and held to show a substantial compliance with the statute. (465)</p>

<p>1. Equity — Public Lands — Mistake of Land Officers Corrected. Equity has always assumed jurisdiction to grant relief where by mistake of the land officers of the United States, lands to which, one party is entitled, have been patented to another. (470)</p> <p>2. - Decree — Cancelling Patent. The decree in such case should not cancel the patent, but declare the party who has obtained the title trustee for the one entitled thereto. (472)</p>

<p>Appeal and Error — .Remand—Time of Application. Under the statute (Laws 1911, c. 107, sec. 5) thirty days is allowed to either party to a cause transferred to this court, in which! t'o apply for a remand of the same to the Supreme Court. Failure to apply within the prescribed period bars the right, whatever may be the reason, of the failure. This court has no discretion in the premises. (474)</p>

<p>Error to Denver District Court. Hon. Greeley W. Whit-ford, Judge.</p>

<p>Error to Jefferson District Court. Hon. H. S. Class, Judge.</p>

<p>Error to Prowers District Coitrt. Hon. A. Watson Mc-Hendrie, Judge.</p>

<p>1. Contracts — Construction. Every contract is to be construed as a whole, effect being given to every phrase where this is possible, and works no injustice to either party. (496)</p> <p>Where the words are susceptible of two constructions, one working injustice should be rejected in favor of one producing the opposite result. (496)</p> <p>Where the intention is manifest inapt expressions will be disregarded, and technical rules of construction will not defeat such intention. (497)</p> <p>The recitals of a contract are to be considered, as these sometimes have great influence in the interpretation. (498)</p> <p>General words following particular or specific terms are restricted lin meaning to things of the same nature with those first mentioned. (498)</p> <p>.2. - Construed. A contract by a merchant employing a salesman provided that the salesman should not, within twelve months after quitting the merchant’s service, “solicit or take orders or deliver orders for teas, coffees, etc., or other merchandise," to any of the customers of the merchant, nor sell nor offer for sale, “teas, coffees, etc., or other merchandise" during the life of the contract, nor for twelve months thereafter, in five certain cities and towns mentioned. Held, that the phrase “or other merchandise” was to be restricted to merchandise of the same character as that previously mentioned, and had not the effect to invalidate the contract; that both as to the time and territory the limitation was eminently reasonable and the contract enforcible. C500)</p>

<p>Error to Mesa District Court. Hon. Thomas J. Black, Judge.</p>

<p>1. New Trial — Weight of Evidence. The weight of evidence does not depend upon its volume, or the number of witnesses. Jurors exercise a large discretion in judging of the credibility of witnesses, and separating the true from the false. Their conclusions will not be disturbed, unless the verdict manifests bias, prejudice, or a wanton disregard of their duties and obligations by the jurors. (505)</p> <p>As a general rule, when the evidence is conflicting the trial court will refuse a new trial e'ven though- there may be a slight preponderance against the verdict. Its action- will not be reviewed unless a manifest abuse of discretion appears-. (505)</p> <p>In actions for tort a verdict will not so readily be vacated as against the weight of evidence, as in actions <ex contractu. A verdict will not be set aside either in the trial court or the court of review unless it is so manifestly against the weight of evidence as to warrant a presumption that the jury misunderstood the evidence, or misconstrued its effect, or were influenced by improper motives. (506)</p> <p>The court of review will not interfere where there is evidence to support the verdict. (505)</p> <p>The trial judge having exercised extreme caution to protect the rights of the plaintiff in error, both in the admission and exclusion of evidence, and in the instructions the court of review declined to reverse his action in denying new trial. (509-510)</p> <p>2. -- Excessive or Inadequate Damages, When a Neva Trial Will Be Granted For,"rests in the discretion of the trial court, in cases where there. is no legal measure of damages, or where the correctness of the result is not determinable by any definite and 'precise rule. (509)</p> <p>3. Exemplary Damages — Construction of Verdict• Where the verdict 'is a general one, not showing that anything is allowed by way of punishment, and the jury were expressly charged that “the law does not require you to give exemplary damages,” held there was no error in this respect. (511)</p>

<p>Error to Crowley District Court. Hon. J. E. Rizer, Judge.</p>

<p>Error to Denver District Court. Hon. Harry C. Riddle, Judge.</p>

<p>x. Water Rights — Nature and Foundation of the Right. The right of the citizen to occupy the lands of the public domain in the arid region for the construction of ditches and reservoirs for irrigation has its foundation in necessity. The right always existed, and the act's of Congress which seem to grant such right, in reality only recognize and confirm it. (552)</p> <p>2. - Intermittent Use of Works for Irrigation — Effect Upon the Right. -The use of works for irrigation, is, in all cases, with us, necessarily intermittent, depending- upon the - season, the crop, the rainfall, the relative priority of different' ditches and reservoirs, and other similar considerations; but the easement is necessarily continuouus. Interruption of the use by the absence of water in the stream which is the source of supply, or the casual destruction of the works of diversion or storage, by floods, or the like, has not the effect to impair the appropriator’s right. (550)</p> <p>3. 'Reservoirs — Easement For — Extent Of. The - area to which the lands of one person may be submerged by the reservoir of another, constructed while such lands were part of the public domain, is not to be extended beyond the limit of actual use, and should be restricted to the smallest area consistent with the useful enjoyment of the reservoir. (553)</p> <p>4. Cases Overruled, explained or distinguished. Tynon v. Despain, 22 Colo. 240, and Blake v. Boye, 38 Colo. 55, explained. (546-548)</p> <p>5. Statutes — Construed—Pacific Railroad Acts. The act of Congress of July 26, 1866 (14 Stat. at Large, page 253, and its amendments) bperate as _ a reservation from the congressional grant of land to the Union Pacific Railway Company in aid of the construction of its railroad, and in favor of t'he owner of irrigation ditches and reservoirs used in connection with water rights which became vested under the local customs and laws prior to the issuance of patent to the railroad company. Tynon v. Despain, 22 Colo. 240; Highline Canal Co. v. Moon, Id. 560, followed. (546, 547)</p> <p>No distinction is recognized between ditches and reservoirs for irrigation. ' (547)'</p> <p>The right of the appropriator depends solely upon the reservation under the act of Congress, and not upon any agreement, express or implied* (546-550)</p> <p>6. Notice — Claim of Reservoir Site. The map of a reservoir site, with tjie required statement thereon, filed pursuant to the act of April 20, A. D. 1887 (Laws 1887, 314) is constructive notice of the contents thereof to all persons subsequently dealing with the. lands described therein, as to the site of the reservoir.* (548)</p> <p>7. Estoppel — By Conduct Land owner without objection or protest acquiesces in the construction by another of a dam or like works for the diversion or storage of water for irrigation, the effect of which is to flood and submerge a part of his lands; he is estopped from after-wards maintaining either ejectment or trespass for the entry. (549)</p> <p>His only remedy is an action for damages and the right of action vests in the one having the title to the land at the time of’ the entry. (549)</p> <p>8. Evidence — Judicial Notice, taken, of the acts of Congress known as the Pacific Railroad Acts. (544)</p>

<p>1. Pleadings — Construed. Parents brought their action for negligence causing the death of their son, alleging that “the plaintiffs — mother and ifather,” etc. Held mere recital of the relationship, and not an avermtent thereof. (555)</p> <p>An action against the master for the death of a servant, the complaint attributing the 'death to a neglect made actionable by a particular statute, must be held to be founded upon such statute. (558)</p> <p>2. -- Defective Allegations, e. g. by way of recital should be assailed by motion to make more specific; otherwise the objection is waived. (555)</p> <p>An objection to the evidence offered to establish matter merely recited, upon the ground that the complaint does not state a cause of action, is equivalent to a general demurrer, and' is properly overruled. (555)</p> <p>3. Parent and Child — Parents Action for Death of Child. The phrase “lineal heirs,” in Rev. Stat., sec. 649, is tq be construed by reference to the law of descent, in force at the date of that enactment (Rev. Stat., sec. 7040), and other statutes in pari materia (Rev. Stat., sec. "2056) ; Hendry v. Holt, 24 Colo. 464, distinguished. (556-558)</p> <p>4. Contributory Negligence- — For the Jury, where the evidence is such, that a jury of intelligent, upright and reasonable men, may honestly exonerate the one whose conduct is in question. (559)</p>

<p>1. Evidence — Declarations—Non-Judicial, are not evidence against a .third person who was not present. (561)</p> <p>2. Deceit — Who Liable. Misrepresentations by one who contracts in his own name for the sale of the lands of another do not charge the owner of the land unless the vendor is shown to have been the agent of such owner.' (561)</p> <p>3. Principal and Agent — Evidence of Agency. It seems that the mere fact that the owner of land executes a conveyance thereof, pursuant to the contract of another, is not even prima facie evidence that the vendor was agent of the land owner. (561)</p>

<p>1. Parties — Plaintiffs. Action for deceit' ‘in the sale of land. Plaintiff produced a contract executed 'by defendant to him, plaintiff, alone, and a conveyance by the land owner to plaintiff and his wife. On motion to dismiss for nonjoinder of the wife, plaintiff offered to show that' he contracted for himself alone, that he alone paid the consideration money, that the wife was not present when the alleged false representations were made, and that they- were never communicated to her. Held that the wife had no right of action, and to allow the motion was error. (563)</p> <p>2. Principal and Agent — Principal Liable for Frauds of Agent. It seems that one who employs another to sell land may be liable for material misrepresentations of the agent inducing the purchase. (563)</p>

<p>Error to Denver District Court. Hon. -H. P. Burke, Judge.</p>

<p>1. Certiorari — Nature and Scope of the Writ. The certiorari allowed by Rev. Stat., secs. 3837 et seq., is for the purpose of procuring a trial de novo, in the District or County Court, of a cause previously tried before a Justice of the Peace. It is a mere substitute for an appeal, and the party pursuing this remedy waives all question as to the jurisdiction over the person. (570)</p> <p>Otherwise as t'o a defect of jurisdiction of the subject matter. (570)</p> <p>The purpose of the certiorari allowed by the code (Rev. Code, sec. 331) is to review the action of an inferior tribunal, board, or officer, who, in exercising judicial functions, has exceeded the jurisdiction or grossly abused the discretion which the law reposes in such tribunal or officer, and no appeal is allowed, nor, in the judgment of the court, any plain, speedy and adequate remedy. (569, 570)</p> <p>Judgment had been entered against the plaintiff in error in the court of a Justice, without any lawful service of process. Held that certiorari under the code was proper; that inasmuch as an appeal, or certiorari under Rev. Stat., sec. 3837, would have constrained the plaintiff in error to a waiver of its right to a lawful service of process, such appeal or statutory certiorari was not an adequate remedy. (574)</p> <p>Held, further, that the possible remedy by injunction was no bar to the remedy by certiorari. (574)</p> <p>2. Injunction — To Stay Execution of Void Judgment. Doubted whether the writ will be awarded where there is an appeal, writ of error or certiorari. (575)</p>