Volume 27 — Colorado Reports

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

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

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

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

W. T. McKay, deceased, the following note : “Know all men by these presents that I, Joseph W. T. McKay, of the county of Arapahoe and. state of Colorado, for value received, promise to pay to Crippen, Lawrence & Co. or order, five years from date hereof with privilege of payment in full at expiration of three years from date hereof at their office in the city of Concord, in the state of New Hampshire, the principal sum of seven thousand dollars with interest thereon at the…

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

Action by appellee, as plaintiff, to recover from appellant, as defendant, damages resulting from the death of her son, caused by the alleged negligence of defendant. Upon the issues joined there was a verdict and judgment for plaintiff, from which defendant appeals.

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

By proceedings on certiorari, plaintiff in error, as relator, commenced this action in the lower court against defendants in error, as respondents, to vacate an assessment returned against him by the assessor of Arapahoe county for the year 1897.

Pursuant to the provisions of “an act to provide for contiguous towns and cities to become annexed ” (Session Laws, 1893, 451; Laws, 1895, 344; 3 Mills’ Ann.

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

The opinion of the court is in response to the following communication and interrogatory of the governor: “December 21st, 1899. “ To the Honorable, the Supreme Court of the State of Colorado. “ Gentlemen: At a meeting' of the State Board of Land Commissioners, held Thursday, the 21st day of December, A. D. 1899, a resolution was passed directing me as president of said board and Governor of the State, under the provisions of the 3d section, 6th article, of the state…

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

<p>1. Practice — Claim against County.</p> <p>Before an action can be maintained on a claim against a county, tbe claim must have been presented to the board of county commissioners for allowance. In an action begun before a court of record this fact must be alleged in the complaint, and in an action begun before a justice of the peace and appealed from the county court to the supreme court upon an agreed statement of facts, the statement must show that the claim was presented to the board before action was begun in order to sustain a judgment against the county.</p> <p>2. Appellate Practice — Oral Admissions of Counsel.</p> <p>The appellate court will not consider oral admissions of counsel made in the trial in the lower court unless the admissions are preserved and properly appear in the record.</p> <p>3. Appellate Practice — Claim against County.</p> <p>An objection that a claim against a county was not presented to the board of county commissioners for audit and allowance before suit was brought thereon, may be raised for the first time in the supreme court.</p> <p>4. Contracts.</p> <p>A former occupant of the Soldiers’ and Sailors’ Home was refused re-admittance, and being destitute became a charge upon the county. There was an understanding between the commander of the home and the chairman of the board of county commissioners that the commander would try to furnish a nurse for the pauper who was helpless, and the commander did employ a nurse for one day and paid him therefor, but refused to pay him anything further and the nurse continued to care for the pauper, the chairman of the board knowing that he expected pay for his services, but not knowing that he expected pay from the county. The county paid the board of the nurse as well as that of the pauper. In an action by the nurse against the board of county commissioners for compensation for his services, it is held that there was no implied contract hy the board to pay plaintiff for his services and the county is not liable.</p>

<p>1. Contracts — Indemnity Bonds — Venue.</p> <p>An indemnity bond given to a sheriff to indemnify him against damage for seizing personal property under a writ of attachment, and which contains no provision making it payable in any particular county, is not a contract to be performed in the county wherein the attachment is levied, within the meaning of section 27 of the code providing that actions upon contracts may be tried in the county in which the contract was to be performed.</p> <p>2. Same — Practice—Change oe Venue.</p> <p>Where an indemnity bond was given to a sheriff to indemnify him against damage for seizing personal property under a writ of attachment and the obligors in the bond resided in a different county from that in which the obligee resided and in which the attachment was levied, and an action was brought upon the bond in the county of the residence of the obligee and summons was served on the obligors in the county of their residence, the defendants had a right to have the cause removed for tidal to the county of their residence, and a refusal by the court to remove such cause to the county wherein the defendants resided upon application by defendants was reversible error.</p>

<p>1. Practice — Judgment Upon Pleading — Oeeioial Bonds.</p> <p>In an action upon an official bond where the execution of the bond was denied by one of the sureties, it was error to enter judgment against such surety on the pleading.</p> <p>2. Contracts — Seals—Scrolls—Pleading.</p> <p>Under section 440, Mills’ Ann. Stats., providing that any instrument of writing to which the maker shall affix a scroll by way of seal shall be of the same effect as if the same were sealed, where a blank form of bond is used with the word “ seal ’’ with a scroll around it printed after the blank space for the signature, the maker of the bond may adopt the printed word and scroll as his seal. In an action upon such a bond an attempted defense that defendant did not seal the bond and did not affix a scroll by way of seal thereto, and that the only seal upon the bond was a scroll by way of seal, and that it was not affixed to the bond by defendant or by his authority or consent, is incomplete unless it go further and deny that he adopted the printed scroll as his seal.</p> <p>3. Pleading — Inconsistent Deeenses.</p> <p>Inconsistent defenses may be pleaded in the same answer, but each defense therein must be complete in, and consistent with, itself.</p> <p>4. Pleading — Negligence.</p> <p>In an action upon an official bond where the surety attempted to plead in defense a release on account of the negligence of plaintiff in instituting proceedings against the principal, without deciding whether the negligence of the obligee in beginning proceedings against the principal would release the surety, it is held that a general allegation of negligence without alleging the facts constituting the negligence was insufficient.</p>

<p>1. Appellate Practice — Error to Court op Appeals — Assignment of Errors and Briefs.</p> <p>Under Rule 48, supreme court rules, it is imperative that plaintiff in error file a new assignment of errors and briefs in cases brought to the supreme court by writ of error to the court of appeals in the same time as is prescribed in cases brought up for review from other courts.</p> <p>2. Same.</p> <p>An assignment of errors that merely charges that the court of appeals erred in affirming the judgment of the lower court and in overruling a motion for rehearing is not such an assignment as will be considered by . the supreme court, and fails to comply with Rule 11 requiring that each error shall be separately alleged and particularly stated.</p>

<p>Fees and Salaries — Statutory Construction — Fees of Justice of the Peace in Criminal Trials.</p> <p>Under section 1905, 3 Mills’ Ann. Stats., the allowance or disallowance of the statutory fees of a justice of the peace in criminal trials is discretionary with the board of county commissioners and is not reviewable by the courts.</p>

Original Application for Mandamus. In 1891 the legislature, in prescribing the duties of the state board of equalization, provided: “ Said board shall ascertain whether the valuation of real or personal property in each county bears a fair relation or proportion to the valuation in all other counties of the state of the same class or kind of property, and on such, examination, they may increase or diminish the valuation of any or either kind, class or grade of property in…

<p>Opinion Followed.</p> <p>This case is decided on the opinion in the case of The People v. Ames, ante, p. 126.</p>

<p>Ordstion Followed.</p> <p>This case is decided on the opinion in the case of The People v. Ames, ante, p. 126.</p>

<p>Appellate Practice — Bill of Exceptions — Extension of Time for Eilinc — J tjrisdiction.</p> <p>A judge in vacation lias no jurisdiction to extend tlie time for filing a bill of exceptions fixed by order of court during the term.</p>

This is an action brought by appellees in the district court of Gilpin county to recover possession of certain placer ground situate in Bay State mining district, Gilpin county, Colorado, and described in their complaint as follows: “ A certain gulch or placer mining claim bounded as follows, commencing at the upper boundary line of claim number eighty-seven (87) and running thence down the North Fork of Clear Creek twenty-five hundred feet to the upper boundary line of…

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

<p>1. Water Rights — Review or Decree — Pleading.</p> <p>Section 2425, Mills’ Ann. Stats., providing that the court in which an adjudication of water rights is had may order a reargument or review of such decree, contemplates that good cause must be shown therefor, and a petition for such review must state facts from which it appears that the party applying therefor has been aggrieved by the decree. It is not sufficient to state mere conclusions in the petition.</p> <p>2. Same — Statutory Grant.</p> <p>Where a party petitions for a review of a decree adjudicating water rights and relies therefor on a statutory grant, he must state facts from which it can be ascertained that the lands in question are the same as those mentioned in the statute, and that the legislative grant had inured to the benefit of petitioner. An allegation in the petition that the lands described constitute a ranch by the same name as that mentioned in the statute, is not sufficient to identify it as the same.</p>

The subject-matter of this controversy is an. alleged alley, embracing portions of tbe south forty-eight feet of lots 27 and 28 and block 91 of the city of Colorado Springs. Appellee threatened to close the way claimed to be embraced in this alley. To restrain this act, appellants, as plaintiffs, brought this action in the court below.

Dependant in error was proceeded against before the police magistrate of the city of Durango, for the violation of section 3 of Ordinance No. 42 of the city. From a judgment of conviction, he appealed to the county court.

The defendants were found guilty of conspiracy to commit burglary and were sentenced to tbe penitentiary. The record discloses the following : In the district court of Arapahoe county two informations were filed against John Short, William Brown and William Gill, which are designated respectively as informations No. 1 and No. 2. There were two counts in each.

This action was originally brought in the county court of Gunnison county by the appellees against the appellants and S. B. Outcalt, J. T. Clayton and R. D. Smith, to recover against Outcalt, Clayton and Smith for goods, wares and merchandise furnished, and labor performed in working the Vulcan mine, situate in Gunnison county, Colorado, and to establish and enforce a lien therefor against said mine.

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

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

<p>Water Rights — Proceedings to Adjudicate Priorities — Appeals.' The method of taking appeals from proceedings adjudicating water rights is regulated by section 2427, Mills’ Ann. Stats., and not by the code. An appeal may be taken within two years from the time a decree is rendered in such proceeding, but not afterwards.</p>

<p>1. Divorce and Alimony — Jurisdiction—Appellate Practice.</p> <p>The court of appeals lias no appellate jurisdiction in suits for divorce, and a judgment for alimony in such suit being but an incident to the main suit for divorce, the court of appeals has no jurisdiction of a separate appeal from such judgment for alimony.</p> <p>2. Same.</p> <p>The supreme court cannot acquire jurisdiction by an appeal from the court of appeals of a case of which the court of appeals had no jurisdiction.</p>

<p>1. Tax Deeds — Sewer Taxes — Evidence.</p> <p>A tax deed may issue upon property sold for delinquent sewer taxes under a special assessment by tbe city of Denver, and will have the same force and effect as evidence, as a tax deed issued upon a sale for general taxes, and is prima facie evidence tliat the taxes for which the property was sold were levied according to law, and that all essential preliminary steps have been regularly taken.</p> <p>2. Tax Deeds — Evidence.</p> <p>The fact that a tax deed shows upon its face that the sale was not made at the first regular sale of lands after the tax became delinquent, does not affect the admissibility in evidence of the deed, nor does it make necessary any preliminary proof explaining why such sale was not made at the first regular sale for taxes, but the presumption is still in favor of the regularity of the sale.</p> <p>3. Appellate Pbactice — Objections not Raised in Trial Court.</p> <p>A judgment will not be reversed upon a point not raised in the trial court, and which is of such character that had an objection been made in the lower court the error might have been obviated.</p>

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

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

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

<p>1. Indemnity Bonds — Public Policy.</p> <p>A bond given to indemnify tbe clerk of a county court on account of money deposited in a bank is not void as against public policy, nor in violation of section 1249, Mills’ Ann. Stats., whicb prohibits the loaning by any public officer of any money in his possession by virtue of his office.</p> <p>2. Appellate Practice — Appeal prom Court oe Appeals — New Question.</p> <p>On error to or appeal from the court of appeals, it is too late to raise in the supreme court any questions not raised in the court of appeals, unless they pertain to tbe court’s jurisdiction of the subject-matter or to the sufficiency of tbe complaint.</p>

In the year 1891 the United Coal Company was organized under the laws of this state for the purpose of acquiring coal lands and mining and selling coal.

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

On February 3, 1898, relator filed her petition in the district court of Arapahoe county for a writ of mandamus, to compel the mayor and city council to take such action as might be necessary to accomplish the removal of a certain railroad track constructed in and along Wewatta street, in the city of Denver; and to compel the board of public works and commissioner of highways to co-operate with them in such action as they might take for that purpose.

<p> Application for writ of error to Montezuma County. </p>

<p>1. Appellate Practice — Pinal Judgment.</p> <p>In an action to require an accounting and settlement between the legatees of a will and heirs of the estate, a decree that adjudged certain parties indebted to the estate in certain sums over and above their distributive shares, and directed that the amounts be paid into court to the credit of the estate, and further directed that it be distributed amongst certain heirs of the estate, naming them and the amount to be paid to each, was such personal and final judgment as would support a writ .of error although it was not in favor of nor against any particular party acting individually or in a representative capacity.</p> <p>2. Estates op Decedents — Practice.</p> <p>Ordinarily and in due course of administration of an estate, money adjudged to be due the estate would be paid into the county court or to the personal representative, but where all parties interested were present in the district court and without objection there litigated the matters in dispute between them, none of them can complain that the decree requires money to be paid into the district court for disbursement by that tribunal, where the decree provides for the distribution to the persons entitled to the same, ■ specifying the amount to be paid each distributee.</p> <p>3. Judgments — Certainty as to Amount.</p> <p>A decree that directed the payment into court of a certain sum to the credit of an estate and that the sum be distributed to certain named heirs of the estate specifying the amount to be paid each, less their pro rata share of the costs of administration, is not so uncertain and indefinite in amount that it will not support a writ of error.</p>

<p>Appellate Practice — Jurisdiction op Supreme Court.</p> <p>An action brought to restrain tbe sale of real estate under a deed of trust, and in which tbe deed of trust was ordered foreclosed, does not relate to a freehold so as to give the supreme court appellate jurisdiction on that ground; and where the court has not jurisdiction on some other ground the appeal will be dismissed.</p>

jError to the District Court of Arapahoe County. This action was originally commenced by plaintiff in error against defendants in error to establish a trust in certain real estate, which had descended to them as the heirs of John W. Iliff, deceased.

<p>Appellate Practice — Jurisdiction of Supreme Court — Freehold.</p> <p>An action by the trustee and cestui que trust in a trust deed to set aside a quitclaim deed to the same property and to have the trust deed adjudged a prior lien thereto on the land, does not relate to a freehold so as to give the supreme court jurisdiction.</p>

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

<p>Appellate Pbactioe — Jurisdiction—Appeal fbom Coubt of Appeals.</p> <p>The question as to whether or not the supreme court has jurisdiction to review the judgment of the court of appeals in a case taken from the district court to the court of appeals, is to be determined from the judgment of the district court and not from the judgment of the court of appeals. If the judgment of the district court is such that the supreme court has not jurisdiction to review by direct appeal from or error to that court, then it has no jurisdiction to review the judgment of the court of appeals thereon, no matter what that judgment may be.</p>

<p> Appeal from, the District Court of Montrose Comity. </p> <p> On Motion to Dismiss Appeal. </p>

This action was commenced by the appellees to recover damages for the death of their father, caused by the alleged negilgence of the appellant. From a verdict and judgment in their favor, the defendant appeals.

The appellee is a duly organized ditch corporation, and has the management and control of a certain irrigating ditch known as the Platte Valley ditch, taken from the Platte river, in Weld county. It has sold to sundry owners of land lying under its ditch, including appellant, a large number of rights for the carriage of water, to be used upon their lands for agricultural purposes.

On August 7, 1897, the Hendrie & Bolthoff Manufacturing Company and A. C. Schlesinger filed a complaint in the district court of Arapahoe county against the Crown Point & Virginia Gold Mining Company, wherein it is alleged that they were judgment creditors of the company; and also that the appellants had theretofore recovered judgment against the company, transcripts of which respective judgments were duly recorded in the office of the recorder of Clear Creek county,…

<p> Transferred from Court of Appeals. </p> <p> On Motion to Remand to Courts of Appeals. </p>

The parties to this action, with one Wilson, were formerly-engaged in business as partners. Benedict claims that October 1, 1891, his copartners purchased his interest in the firm, for which they agreed to pay him the sum of $10,000 and other considerations. He brought an action to recover the balance of the money consideration, basing his right thereto upon the foregoing statement, and claims that such balance is the sum of $2,500.

Action by appellants, respectively plaintiff and interyenor, in the court below, to set aside a trustee’s sale of real estate under deed of trust, and for other relief. From a judgment of nonsuit, they bring the case here on appeal. The necessary facts for an understanding of the errors assigned and questions decided will be found in the opinion.

jError to the District Court of Montezuma County. The defendant (plaintiff in error) was convicted of statutory larceny in that, as president of the Bank of Rico, which was incorporated and doing a general banking business under the laws of the state of Colorado, he received and assented to the reception of a certain deposit in said bank knowing at the time that the institution was then insolvent.

<p>Practice in Criminal Cases — Complaint by Defendant against Himself — Former Conviction.</p> <p>Where a party guilty of an assault went before a justice of the peace and swore to a complaint charging himself with such assault, and upon his own confession and testimony the justice of the peace entered judgment sentencing him to pay a fine and costs, the party was not in jeopardy and the judgment could not be pleaded as a former conviction in a subsequent prosecution for the same assault.</p>

jError to the District Court of Arapahoe County, On Motion to Dismiss Writ of Mrror. Action by defendant in error as plaintiff in the court below against plaintiff in error as defendant, for divorce. As an incident to the main relief sought, she prayed for alimony pendente lite, suit money, and attorneys’ fees. From a judgment for these items, defendant brings the case here for review on error. No decree for divorce has been rendered in the case.

<p>Appellate Pbactioe — Piling Absteacts and Bbiefs — Extension of Time.</p> <p>An application for the extension of time for filing abstracts and briefs either in a criminal or civil cause must be made within the time prescribed by the rules for such filing, and an application made after the expiration of such time will not be granted.</p>

<p> Error to the District Court of El Paso County. </p> <p>This action was commenced by plaintiffs in error for the purpose of obtaining a decree releasing certain real estate in an addition to the town of.Manitou, from a mortgage lien, and to set aside the proceedings foreclosing such mortgage, so far as it affected the subject-matter of the controversy. From a decree dismissing their complaint, and denying the relief demanded, they bring the case here for review on error. The facts upon which the rights of the respective parties depend will be found in the opinion, in connection with the questions determined.</p>

The information under which the conviction was had charges in the first count that on or about the first of August, 1898, and each and every day thereafter till November 10, the defendant knowingly and unlawfully maintained and kept a lewd house and place for the practice of fornication; and in the second count, containing the same allegation as to time, that defendant knowingly and unlawfully kept a common, ill-governed and disorderly house to the encouragement of idleness,…

<p>1. Jurisdiction — Supreme Court — Superintending Control over Inferior Courts.</p> <p>The supreme court’s constitutional power of “ superintending control over all inferior courts ” was not designed to secure the review of judgments in connection with ordinary appellate jurisdiction, but should be exercised only in special or extreme cases, whose peculiar circumstances as to the facts or the law governing the same justify a resort to it.</p> <p>2. Same — Superintending Control over Court of Appeals.</p> <p>The supreme court may exercise its power of “ superintending control” over the court of appeals when the court of appeals is without jurisdiction to review the judgment in question. And when in a clear case the court of appeals refuses to be guided or controlled by the law as laid down in prior decisions of the supreme court, it would become the imperative duty of the supreme court to resort to its power of “ superintending control” in order to enforce uniformity of decisions in the appellate courts of the state.</p> <p>3. Same.</p> <p>When the court of appeals has jurisdiction to review a case, its jurisdiction is not affected by the correctness or incorrectness of its decision, and if its decision is not contrary to any prior decision of the supreme court, it cannot be reviewed by the supreme court under its power of “ superintending control ” on tbe ground that it is at variance with the settled doctrine upon the subject under consideration.</p> <p>4. Jurisdiction — Habeas Corpus — Custody op Infants.</p> <p>The court of appeals has jurisdiction to review the judgment of a district court in a habeas corpus proceeding to determine the right to the custody of an infant, and the supreme court will not issue a writ of certiorari to review the judgment of the court of appeals in such case.</p>

<p> Petition for Writ of Certiorari. </p>

<p> Petition for Writ of Certiorari. </p>

Action in replevin by appellees, as plaintiffs, to recover from appellant, as defendant, certain personal property. From a verdict and judgment in favor of plaintiffs, the defendant appeals.

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

This action was commenced by appellee, as contestor, in the court below, against appellant, as contestee, to contest tbe election of the latter to the office of county commissioner for the third commissioners’ district, of Gilpin county. From a judgment in favor of contestor, the contestee appeals. The condition of the original bill of exceptions was such, that none of the questions which appellant sought to raise could be reviewed in this court.

At the last general election held in the county of Jefferson, the parties to this action were candidates for the office of sheriff of that county. Appellant was the candidate of the Republican party, and appellee the candidate of the People’s, Silver Republican, Teller Silver Republican, Democrat and Populist parties.

This is an action to enforce a trust. The facts upon which the right to relief is predicated are in substance as follows: On August 10, 1878, Andrew W. Gill purchased from the original locators a certain mining claim known as the Paris lode claim, situate in Lake county, Colorado. During the years 1878 and 1879, by sundry conveyances, he parted with all his interest in the claim except six eighteenths. On December 15, 1879, Theo.

On December 19, 1899, plaintiff in error was placed on trial in the district court of Morgan county upon two in-formations, numbered 184 and 185, charging bim with the crime of larceny. In each case he filed a plea of former jeopardy.

<p> Original Proceeding for Writ of Prohibition. </p> <p> On Petition for Rehearing. </p>

Appellant, as plaintiff, brought this action in the court below, for the purpose of having a receiver appointed to take possession of, and sell, certain ditch, water rights, and other property, and distribute the proceeds among the stockholders of the Clear Creek Platte River Ditch & Mill Company.

Action by appellant, as plaintiff in the court below, as the owner of the Tecumseh lode, in support of his adverse against the application of appellees, as defendants, for patent to that portion of the Ophir lode in conflict with the Tecumseh. From a judgment in favor of defendants, plaintiff appeals.

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

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

<p>Appellate Practice — Jurisdiction of Supreme Court — Attachment — Intervenors—Value of Property.</p> <p>In an attachment suit where the property attached was claimed by an intervenor and the judgment was in favor of the intervenor, but there was no finding of value either by the jury or the court, the supreme court has no appellate jurisdiction. The fact that the petition of intervention alleged the value at more than $2,500 and the allegation of value was not controverted, is not sufficient to confer jurisdiction.</p>

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

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

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

<p>Water Rights — Appropriations for Mill Purposes — Abandonment — Priorities for Storage.</p> <p>Where water appropriated for mill purposes, after its use is permitted to flow back into the stream undiminished and is appropriated during the winter season for storage in a reservoir for future use . in irrigation, the storage appropriator acquires a prior right to the water during the season he has appropriated it that cannot be defeated by a change of use by the mill owner either by transferring his right or by abandonment in favor of another appropriator. In case of abandonment by the mill owner the water inures to the benefit of appropriators below the mill ditch according to priority and the storage appropriator below the mill ditch is entitled to the water in preference to a prior appropriator for the same purpose whose point of diversion is above the mill ditch but whose appropriation is junior to the appropriation for mill purposes.</p>

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

This action was commenced May 7, 1896, by appellee, as plaintiff in the court below, on behalf of himself and other stockholders of the State National Bank against appellants, as defendants, except… Held: at which eleven members were present, including the directors above named.