Volume 28 — Colorado Reports

The following summary of the findings of fact and conclusions deduced therefrom by the trial court fully present the only question necessary to consider on this appeal. The Ibex and Grlengary Consolidated Mining Companies are corporations organized under the laws of this state, and own adjoining mining properties. The former procured, by purchase, a majority of the capital stock of the latter.

<p>Appellate Practice — Jurisdiction of Supreme Court — Real Estate.</p> <p>An action to restrain the sale of real estate under a deed of trust does not involve a freehold so as to give the supreme court appellate jurisdiction therein.</p>

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

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

<p>1. Homicide — Evidence—Res Gestas.</p> <p>In a prosecution for murder where it was claimed that deceased died from a blow on the head inflicted the day preceding her death by defendant, her husband, it was error to admit as a part of the res gestea a statement by deceased that defendant had knocked her down and nearly knocked her cold, made in answer to inquiries as to what was the matter, at a mill where she had gone about 200 feet from her home where the blow was alleged to have been inflicted, and about two hours after the time it was supposed to have been inflicted and where in going to the mill she passed by two groups of people, some of whom she knew, without speaking of the matter and where there was an entire absence of evidence as to the time when, if over, the stroke was given.</p> <p>2. Practice in Criminal Cases —• Evidence — Improper Argument oe Counsel.</p> <p>In a prosecution of defendant for the alleged murder of his wife, a brother-in-law of defendant, a witness for the prosecution, in response to a question which called for no such answer, got before the jury a statement that defendant had killed his wife’s sister, wife of witness, which statement was stricken from the evidence, but in argument after defendant’s counsel had referred to the prejudice of said witness the prosecuting attorney in reply in his closing argument referred to the matter in violent manner stating that the witness had good cause for his prejudice and if permitted to do so ho would be glad to toll the jury the cause and challenged defendant’s counsel to allow him to tell the jury why the witness was prejudiced. Defendant’s counsel promptly objected to the language of the prosecuting attorney, but the court refused to sustain the objection and in the hearing of the jury stated that the remarks of the prosecuting attorney were justified. Held, that the conduct of the prosecuting attorney was a flagrant violation of defendant’s rights and that the trial court should have severely reprimanded the attorney and should have set aside a verdict of conviction because of such conduct.</p> <p>3. Practice in Criminal Cases — Evidence of Previous Offense —Instructions.</p> <p>Where a defendant testifies in his own behalf and evidence of conviction of previous crime is admitted as tending to affect his credibility, it is the duty of the court to instruct the jury for what purpose such evidence is admitted and that it must be considered for no other purpose.</p> <p>4. Homicide — Evidence—Cause of Death.</p> <p>In a prosecution for murder where it was claimed that deceased died from a blow inflicted by defendant, and the two surgeons who performed an autopsy differed in their testimony as to the cause of death it was error to refuse to permit the physician who testified for defendant to answer the interogatory as to whether or not he found any evidence of violence having been applied to deceased, the other physician having given evidence similar for the people.</p> <p>5. Homicide — Evidence—Insufficient.</p> <p>In a prosecution of defendant for the murder of his wife, a son testified that defendant and deceased were quarreling when he left for school the morning preceding death but that defendant did not strike deceased or use any physical violence while he was present. About two hours later deceased left her tent and went about 200 feet to a mill where in answer to inquiries she said defendant knocked her down. In going to the mill she passed immediately by a group of people, some of whom she knew, without speaking to them. While at the mill she seemed in a dazed condition and held one hand on her head and the other on her breast. She made no request to have a physician or officer called. After staying at the mill about ten minutes she returned to her tent and shortly after took a street car for another part of the city and went to the house of her daughter where she remained during the night and part of the next day but made no complaint of any injury. She sent for an express wagon and without assistance walked down a flight of stairs and out to the street and got into the express wagon. She inquired of the driver the cost of removing a trunk from her tent to her daughter’s house and on the way to her tent she fell forward and died. The physicians who performed the autopsy disagreed as to the cause of death. Held, insufficient to prove the corpus delicti.</p>

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

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

Upon Review from the District Court of Arapahoe County. Held: and said state convention thereafter duly and regularly held recognized and seated the delegates so elected by said Coliseum Hall convention. Thereafter the said Coliseum hall convention in regular session made the nominations for county officers which are being protested by the petitioners in this cause.

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

<p>1. Evidence — Minutes os Convention — Partial Transcript.</p> <p>Where the minutes of a political convention were lost a partial transeript that was shown to contain everything that the minutes contained on the question of adjournment was admissible in evidence to show that the motion to adjourn mentioned no place for the adjourned meeting.</p> <p>2. Political Conventions — Adjourned Meeting — Place oe Meeting — Power to Rescind Former Action.,</p> <p>Where a convention adjourns to a future day without stating a place of meeting the proper place for meeting of the adjourned session is at the same place where the former meeting was held. And where a convention after making a nomination adjourned to a future day without naming the place and on that day met at another town and attempted to rescind its former action and nominated a different person for the same office, unless all the delegates were present and participated the latter nomination was invalid and the former was entitled to be placed upon the official ballot.</p>

<p>1. Elections — Nominations—Protests—Authority or Petitioner.</p> <p>In a proceeding to protest nominations o£ candidates for office where no objection is made before the secretary of state to the authority of petitioner to make the protest, such objection cannbt be raised on review in the district court.</p> <p>2. Elections — Nominations—Party Nam:e.</p> <p>Nominations of candidates for office under the name “Bryan Demo, cratic Party” will not be permitted where it appears that nominations of candidates for the same offices have already been made under the name “Democratic” and Mr. Bryan was the Democratic candidate for president.</p>

This was a proceeding in mandamus to compel the state treasurer to pay thirteen state warrants issued in the year 1889. There was a separate cause of action on each warrant, but as in each the allegations of the petition and the alternanative writ are the same, the disposition we make of the first count settles all.

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

<p>Attorneys at law — Disbarment.</p> <p>Where an attorney at law received money from a client to pay costs in a suit which he agreed to bring but which he never brought, and refused to return on demand, and caused his client to expend considerable money preparing for trial knowing that no action had been brought and collected money for a client and failed to pay it over on demand, his name will be stricken from the roll of attorneys.</p>

<p>Attorneys at Law — Disbarment.</p> <p>Where an attorney at law has been guilty of larceny of law books his name will be stricken from the roll of attorneys.</p>

<p>Practice in Criminal Cases — Misnomer—Variance.</p> <p>Where a defendant was informed against as Mrs. James Burns and no plea of misnomer was interposed and the record does not show any change made in the name by order of court nor that she was equally well known by both names, a verdict and sentence against Nora Burns is a fatal variance and void. There is no presumption in favor of the authority to change the name but the record must affirmatively show the fact authorizing the change.</p>

The title of this case below was “The People of the State of Colorado, for the use of the board of county commissioners of the County of Arapahoe, in the State of Colorado, plaintiff, v. Matt Adams, Job A. Cooper and Charles L. McIntosh, defendants.” The object of the action was to recover the penalty of the official bond of Matt Adams, as clerk of the district court, for that he misappropriated certain witness fees, jury fees, fines and fees collected by him, aggregating…

<p>Elections — Nominations—Protests—Review.</p> <p>The supreme court will not exercise its discretion to review the action of the district court sustaining the ruling of the secretary of state upon a protest made to the placing of certain nominations on the official ballot when that discretion is invoked only nine days before election, as under the requirements of the law the secretary of state-should not later than that date send to the county clerks the certificates of nominations.</p>

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

<p>Opinion Followed.</p> <p>This case is decided upon the opinion in the case of Beekmith v. Winters et al., ante p. 96.</p>

<p>Opinion Followed.</p> <p>This case is decided upon the opinion in the case Beckwith v. Winters et al., ante p. 96.</p>

<p>1. Partnership — Contracts—Presumptions.</p> <p>Where a partnership agreement is in writing it is presumed that all previous negotiations concerning the same were merged in writing.</p> <p>2. Evidence — Contracts—Parol and Written.</p> <p>A parol agreement directly repugnant and contrary to the terms of a written agreement does not come within the exception that sometimes permits parol evidence of other and further agreements than the one expressed in the writing.</p>

The subject of this controversy is the conflict between two lode mining claims, known as the Canestota and the Last Batch. Appellee, as plaintiff, and owner of the former, brought this action in the court below in support of his adverse against the application of appellants, as defendants, for patent to the latter. From a judgment in favor of plaintiff, the defendants appeal. The Last Batch bases its location as of October, 11,1887, and the Canestota as of January 13, 1896.

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

On May 9, 1898, The American Refrigerator Transit Company and twelve other foreign companies, as plaintiffs, filed in the district court of Arapahoe county a complaint, asking for the issuance of a writ of injunction, restraining the defendants therein named as the state board of equalization from assessing the cars of any of said thirteen foreign companies under the act of 1897, entitled “An act to provide for the assessment and taxation of railroad cars other than those…

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

This action was commenced by appellee, as plaintiff, to recover from appellant, as defendant, damages for a sprain of her right ankle and back, impairment of her sight, and severe internal injuries, resulting, as it is alleged, from a fall caused by a defective sidewalk. From a verdict in her favor the city appeals.

The Grand River Ditch Company was a corporation organized under the laws of this state to make a diversion of water from the Grand River and to supply the same for irrigation purposes to owners of lands lying under its Grand River ditch through which the water thus diverted was carried.

<p>1. Principal and Surety — Release—Dismissal op Action.</p> <p>Where an action was brought against a principal and his surety a dismissal as to the principal where the remedy was expressly reserved against the surety by taking judgment against him did not operate as a discharge of the surety.</p> <p>2. Principal and Surety — Administrator’s Bond — Dismissal op Action Against Principal — Liability op Surety.</p> <p>Under the statutes of Colorado the obligee in an administrator’s bond may sue all or any one or more of the obligors, and where an action was brought against the principal and surety on such bond the action could be dismissed as to the principal and continued as to the surety without discharging the surety from liability.</p> <p>3. Administrator’s Bond — Action Upon — Itemized Statement— Administrator’s Report.</p> <p>In an action against the surety on an administrator’s bond for failure of the administrator to account for certain moneys which came to his hand, in response to a demand of defendant for an itemized account, the administrator’s report filed in the county court showing the balance due as it appeared from an itemized statement of his receipts and expenditures is a sufficient itemized account to be furnished.</p> <p>4. Administrators — Action Upon Bond — Evidence—Book Entries.</p> <p>In an action upon an administrator’s bond the fact that the administrator de bonis non was permitted to testify from a book given him by his predecessor in which was kept the accounts of his predecessor as administrator, without introducing the book in evidence, was immaterial where the record of the county court, in which precisely the same items of account appeared, was afterwards introduced in evidence.</p> <p>5. Evidence — Court Records.</p> <p>If a county court permits one of its record books to be taken into another court as evidence, the objection that the original, and not a certified copy, is produced, is not tenable.</p>

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

Original Proceedings in Prohibition. This is an application for a writ of prohibition against the district court of Boulder county to restrain it from entering upon the trial of an action which, as it is alleged, the court has no jurisdiction to try. The complaint was filed in the district court on the 19th of November 1898. The action was in support of an adverse claim protesting against an application for a patent to a mining claim.

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

The action concerns a strip of ground in conflict between the Boot Jack and Contention lode mining claims situate in San Miguel county. The Boot Jack is the earlier location in point of time. When its owners (defendants) applied in the land office for a patent, plaintiff,the owner of the Contention lode, filed his adverse therein, and brought this action in its support.

<p>Evidence — Experiments out or Court.</p> <p>The testimony of witnesses as to experiments made out of court is admissible to illustrate or rebutt testimony given in the ease, when it is shown that the conditions are the same. And where witnesses testified to hearing a conversation wherein defendants offered to bribe a member of a city council, it was error to refuse testimony on behalf of the defendants of an experiment made by witnesses standing at the same point where the witnesses who claimed to have hoard the conversation stood, and listening while defendants stood at the same point they were said to have stood when they offered the bribe, and talked in an ordinary tone, to show that their conversation could not have been heard that distance, defendants offering to show that the conditions were the same.</p>

<p>1. Water Rights — Reversal of Degree — -New Trial — Res Judicata.</p> <p>Where on appeal from a judgment decreeing to junior appropriators a prior right to the waters of a tributary stream on the ground that they had largely increased the flow of such stream by the drainage of adjacent lands, the appellate court sustained the lower court to the extent that such junior appropriators were entitled to the increase of water they had caused to flow in the stream, but reversed the judgment because it decreed them all the water in the stream instead of only the increase and the.cause was remanded for a new trial, on a second trial, no finding of fact made by the lower court on the former trial, or which the appellate court said was supported by the evidence, was res judicata of any fact upon which the rights of the parties to the waters of such stream depended.</p> <p>2. Water Bights — Tributary Streams — Burden op Proof.</p> <p>In. an action where plaintiff sought to restrain defendants from diverting water from a source alleged to be tributary to the stream from which plaintiff was entitled to a prior appropriation and where defendants denied that the source from which they diverted water was tributary to the stream from which plaintiff took water the burden of proof was on plaintiff to show that it was a tributary and not on the defendant to show that it was not.</p> <p>3. Appellate Practice — Reversal—Prejudicial Error — Presumptions.</p> <p>An error must be prejudicial to justify the reversal of a judgment, but an error is presumed to be prejudicial to the party against whom it is made, unless it affirmatively appears that it was harmless.</p> <p>. i. Same — Burden of Proof.</p> <p>Where in the trial of a cause the evidence was conflicting and the trial court placed the burden of proof on the wrong party the error will be held to be prejudicial although the evidence was sufficient to have sustained the finding if the court had adopted the proper theory as to the burden of proof.</p> <p>5. Water Rights — Modification of Decree After Affirmance.</p> <p>Where on appeal from a decree involving the right to maintain and use water from, two ditches used as feeders to a main ditch the decree abating one of the ditches on the ground that by percolation it drew water from the main stream was affirmed, and as to the other ditch the decree was reversed and remanded for a new trial, and on the second trial defendants filed a supplemental answer alleging that the channel of the stream had so changed as to make it necessary for them to movo the headgate of their main ditch further up the stream and asking a modification of the former decree so as to permit them to utilize the feeder ditch that had been abated for the purpose of diverting the water from the stream to supply their main ditch and also alleging that the part of the ditch desired to be so used would not draw water from the stream except through its headgate, and issue being joined thereon the trial court by its findings recognized that defendants were entitled to the modification asked but in the decree failed to affirmatively modify the former decree, on appeal the decree will be reversed and the cause remanded with directions to enter a decree affirmatively modifying the former decree as demanded in defendants’ supplemental answer.</p>

<p>1. Mandamus — State Warrants — Pleading—Burden op Proof.</p> <p>In a proceeding by mandamus to compel the state treasurer to pay a warrant, the alternative writ must allege all the facts which make it the duty of the treasurer to pay the same, and when such facts are put in issue by an answer, the burden of proof is on the petitioner affirmatively to establish them and not on the treasurer to negative their existence, whether it be a preferred or non-preferred warrant, drawn upon a fund created by a continuing or biennial appropriation.</p> <p>2. State Warrants — Validity—Presumption.</p> <p>Where no issue is made in the pleadings as to the validity of state warrants, no evidence is required as to their validity, but it will be presumed that the state auditor whose duty it is to investigate and determine the validity of claims before issuing warrants therefor did his duty and that the warrants are valid.</p> <p>3. Appropriations — Preferred—Expenses of Government.</p> <p>The necessary appropriations to defray the expenses of the executive, legislative and judicial departments of the state government for each fiscal year, including interest on any valid public debt, are entitled to preference over any other appropriations from the public revenue of the state, without reference to the date of the passage of the acts making such appropriations.</p> <p>4. Same.</p> <p>As to preference of payment from public revenue of the state there is no distinction between the salaries of the officers of the executive legislative and judicial departments and the salaries of the employees and other necessary incidental expenses of such departments, whether they be provided for by continuing appropriations or only by the general appropriation bill.</p> <p>5. Appropriations — Priority—Date of Acts.</p> <p>The priority of appropriations based upon the date of the faking effect of the respective acts making the appropriations does not apply to preferred appropriations, and applies to non-preferred appropriations only in ease the general assembly has not otherwise legally provided.</p> <p>6. Continuing Appropriations — Preferred Claims.</p> <p>A continuing appropriation is not necessarily a preferred claim against the public revenue of the state. All preferred appropriations, whether continuing or made by the legislature for each particular year are equal as to priority of payment. And an appropriation for a pre-. ferred purpose made at each session of the legislature will take precedence over a prior continuing appropriation for a non-preferred purpose.</p> <p>7. State Warrants — Registration—Priority of Payment.</p> <p>The statute requiring state warrants to be paid in the order of their registration is applicable only as between warrants of the same rank. In case of a shortage of the state revenue a warrant drawn in payment of a preferred claim though presented for payment and registered subsequent to the presentation and registration of a warrant for a non-preferred claim must, notwithstanding its later registry, be paid before the' earlier registered warrant for the non-preferred claim is paid.</p> <p>8. Powers — Abuse.</p> <p>The fact that a power can be abused is no argument against the existence of such power.</p>

<p> Error to the County Court of Arapahoe County. </p> <p>From a judgment, adjudging plaintiff in error so insane or distracted in mind as to render liim incapable of properly or safely attending to or managing his estate, and appointing a conservator for that purpose, he brings the case here on error. He is about 65 years of age, and has been afflicted with shaking palsy for over ten years last past, which has rendered him quite feeble physically, affected his power of speech, and, to some extent, impaired his mental faculties. He has an estate valued at between twenty-five and thirty thousand dollars, which consists principally of realty in the city of Denver.</p> <p>The statute under which the proceeding was had is as follows:</p> <p>“Whenever any reputable person shall file with the county court * * * a complaint, duly verified, and shall allege therein that any person in such county is a lunatic or an insane person, and is so distracted in mind as to render such person incapable of properly and safely attending to his affairs or managing his estate * * * the court, if satisfied that there is a good cause for the exercise of its jurisdiction, shall thereupon order' a jury * * * to be summoned to inquire into such facts; * * *. If it shall be alleged in said complaint and proved to the satisfaction of the court that said lunatic or insane person has personal or real estate, and if the jury shall return in their verdict that such person is so insane or distracted in mind as to render him or her incapable of managing his or her estate, it shall be the duty of said county court to appoint some fit person to be the conservator of said estate.” 3 Mills Ann. Stats., Sec. 2935, (Laws of 1893, p. 331.)</p> <p>Over the objection of plaintiff in error, several witnesses, both professional and non-professional, were asked to give an opinion regarding his capability of properly or carefully managing his business affairs, the answer in each instance being in the opinion of the witness, that he was incapable.</p>

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

Original Application for Writ of Certiorari. Upon the ex parte application o£ petitioner Martin Sullivan for a writ of certiorari, directed to the district court of Lake county and the judge thereof, an order to show cause was issued, and upon filing the return, which is not controverted, respondents move to vacate the order.

<p>1. Attobneys at Law — Disbabment Pboceedings — Answer.</p> <p>In a disbarment proceeding against an attorney at law it is respondent’s duty, in his answer, not merely to deny the charges, but to explain and set out the bonafldes of the transactions to which they relate.</p> <p>2. Same.</p> <p>In a disbarment proceeding against an attorney at law wherein he is charged with collecting money for clients and failing to pay it over on demand, an answer which admits receiving the money as charged and alleges that prior to the institution of the disbarment proceeding and before he had any knowledge that it was to be instituted, he paid over to the respective clients the full amount collected less necessary fees and charges is insufficient. It is his duty to state in his answer when he paid the money to his clients and how much he retained for his fees and charges, to enable the court to determine whether or not his conduct in the transactions was honorable and just.</p> <p>3. Same.</p> <p>In a disbarment proceeding against an attorney at law wherein he is charged with receiving money from a client with direction to bring suit to establish a lien on certain land; to pay a docket fee; to pay delinquent taxes and redeem the land from tax sale; and that respondent converted the money to his own use and did not bring the suit as directed, nor pay the docket fee or court costs and did not pay the delinquent taxes or redeem the land from tax sale; an answer that alleges that upon receipt of the money respondent was informed by the county treasurer that a tax deed had been issued and that the land could not be redeemed; that suit was brought to foreclose the deed of trust and annul the tax deed; that respondent was present at the trial and assisted therein; denies that he did not pay the docket fee; and says that he now holds part of the money to pay the taxes if it shall be decided that his client is to pay them, and that if it shall be decided that he is not to pay the taxes, he stands ready and willing to return the money, is insufficient as it does not answer the charges nor allege that respondent brought suit pursuant to his contract of employment; nor does it explain the disposition of the balance of the money received. It was respondent’s, duty to explain to the court the entire transactions and to account in detail for the money received from his client.</p> <p>4. Same — Presumptions.</p> <p>In disbarment proceedings there is no presumption that the respondent is innocent, and unless he fairly and in detail explains to the court his entire connection with the transaction wherein he is charged with improper conduct, it will be presumed that he is unable to do so.</p> <p>5. Same — Judgment on the Pleadings.</p> <p>In a disbarment proceeding, notwithstanding the answer is evasive, if it does not appear that respondent has purposely evaded furnishing the court with the information required in such cases, a judgment on the pleadnig will not be granted but respondent will be given an opportunity to file a more specific answer.</p>

Two defenses were interposed: (1) That the treasurer had not received of the money sought to be recovered a sum in excess of a specific amount, and that he had paid to his successor all moneys so received. (2) That he had deposited the moneys sued for in a bank reputed to be safe and solvent, which had subsequently failed, and that the loss thus occasioned was without fault or negligence upon his part. Prom a judgment on the pleadings,, the defendants appealed to this court.

JError to the County Court of Weld County. Action by defendant in error, as complainant, against the estate of James Walker, deceased, to recover the value of services rendered deceased in the sum of $2,130. From a judgment allowing the sum of $408.00 on this account, the executor brings the matter here for review on error.

Defendants in error claim to have entered into a contract with plaintiff in error, whereby they were employed by the latter to sell its mining property, by the terms of which it was provided that if a sale was effected, they were to receive a specified sum; that by virtue of this agreement, they negotiated a sale of such property, upon terms and conditions satisfactory to the company.

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

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

<p>Appellate Practice — Jurisdiction op Supreme Court — Non-suit.</p> <p>The supreme court has no appellate jurisdiction to review a judgment of non-suit, where there is no money judgment, and where the action does not relate to or involve a freehold or franchise, nor involve a constitutional question.</p>

<p> Original Proceeding in Disbarment. </p>

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

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

<p>Appellate Practice — Dismissal—Failure to File Abstracts.</p> <p>Where a cause is docketed in the supreme court aud the appellant or plaintiff in error fails to file any abstract of the record or briefs within the time prescribed by the rules, the court may of its on motion dismiss the cause without notice.</p>

<p> Original Proceeding in Disbarment. </p>

In September, 1896, The Eagle Gold Mining Company, a corporation organized under the laws of Arizona, owned certain mining property situated in San Miguel county, Colorado, known as the Summit lode mining claim and Summit tunnel site.

The plaintiffs, in their amended complaint, filed on the 7th of May, 1896, allege, among other things, that the plaintiffs are the several owners of lands, lying, under the ditch of the defendant, which, since 1882 had been irrigated therefrom; that they and their grantors are, and have been during all of said time, the owners of certain perpetual, non-assessable water rights and rights to the use of water therein, and the owners of certain head gates in and along said ditch…

This is an action for divorce. The parties were married February 14, 1886, at Durango. The case was tried in June, 1899.

This is an action, as designated by counsel for appellant, Who instituted this proceeding in the court below, to partition the waters of the South Arkansas river for irrigation purposes between appellant, as plaintiff, and the appellees, as defendants. In addition to those named, “the general public of the state of Colorado, et al., as possible claimants Who are at present unknown to plaintiff,” were made defendants.

<p>1. Contracts — Proposition and Acceptance.</p> <p>To constitute a contract the minds of the contracting parties must meet and assent to the same thing in the same sense. A party to whom a proposition is made must accept or reject the proposition as a whole. An offer to accept under modification is a rejection of the offer.</p> <p>2. Same — Evidence.</p> <p>Defendant, the locator of a mining claim, proposed to plaintiff that if he would pay the expense of a survey and the assessment work he would give him a half interest in the claim. Plaintiff answered that if the claim was in conflict with certain other claims he would have nothing to do with it but that he would employ a surveyor to make the survey. He employed a surveyor that had already been engaged by defendant to make the survey. Defendant refused to permit the surveyor to place plaintiff’s name on the location stake and paid for the survey. Held that there was no such acceptance of defendant’s proposition, by plaintiff, as would constitute an enforceable contract.</p>

The subject matter of controversy is the right to the proceeds of two policies of insurance upon the life of one John Pittinger, deceased, which the association issuing them paid into the registry of the trial court, leaving the parties to this action to litigate the question as to which is entitled to such fund. Appellant claims this fund as the legal beneficiary and as the neice, and appellee as the legal beneficiary and as the widow of deceased.

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

<p> Error to the County Court of La Plata County. </p>

<p>1. Mortgages — Foreclosure—Receivers—Notice.</p> <p>Before an order of court appointing a receiver can legally be made, notice must be given to those entitled to be heard. In an action to foreclose a mortgage and praying for the appointment of a receiver by a minority holder of the bonds secured by the mortgage where the plaintiff alleges as a basis of its right to ask a foreclosure that the trustee had abandoned its trust, and that its interests was antagonistic to the mortgage creditors’ notice to the trustee of the application for a receiver was not notice to or binding upon other bondholders not parties to the suit.</p> <p>2. Same — Intervention—Estoppel.</p> <p>In an action by a holder of a minority of the bonds secured by a deed of trust, to foreclose and asking for a receiver, where another bondholder presented a petition of intervention asking to be made a party plaintiff and to adopt the allegations of plaintiff’s complaint which petition was not granted and petitioner withdrew its petition to intervene as plaintiff and with others was permitted to appear as defendant, petitioner was not estopped by his intervention petition to object to orders previously issued appointing a receiver and authorizing the issuance of receiver’s certificates.</p> <p>3. Same.</p> <p>In an action by a holder of a minority of the bonds secured by a deed of trust, to foreclose and asking for a receiver, other bondholders by voluntarily appearing as defendants after the appointment of a receiver and the issuance of receiver’s certificates, are not estopped thereby to object to the validity of the certificates on the ground that the parties affected by them had no notice of the application upon which they were based.</p> <p>4. Trusts and Trustees — Act or Trustee in Violation or the Trust not Binding on Cestui que trust.</p> <p>A trustee for mortgage bondholders who in violation of the trust consents that receiver’s certificates shall be given a preference lien over the mortgage bonds does not thereby bind the bondholders or estop them to object to the validity of such certificates.</p> <p>5. Same — Admissions or Trustee.</p> <p>In an action to foreclose and for the appointment of a receiver by a minority bondholder, wherein the trustee was made defendant and charged with being unfaithful to its trust and antagonistic to the bondholders, admissions in the answer of the trustee are not binding on other bondholders not parties to the action.</p> <p>§. Mortgages — Receiver’s Certificates.</p> <p>The fact that receiver’s certificates sold at too great a discount is no reason why mortgage bondholders other than the purchasers of the certificates should 'not question their legality and object to giving them a preference over the mortgage bonds.</p> <p>7. Same — Estoppel.</p> <p>In an action by a minority mortgage bondholder to foreclose and for a receiver, the fact that certain receiver’s certificates were issued after the other bondholders were made defendants in the action without objection on their part does not estop them to object to a former series of certificates issued before they were made parties to the action.</p> <p>8. Receiver’s Certificates — False Representations.</p> <p>Where in a foreclosure suit, by reason of false representations of plaintiff’s agent receiver’s certificates were sold to plaintiff for a less sum than plaintiff had authorized its agent to pay for them the court properly canceled such certificates to the" amount of the difference between what the agent was authorized to pay and what he did pay, the certificates still being held by plaintiff.</p> <p>. Receiver’s Certificates — Prior Liens — Parties.</p> <p>A purchaser of receiver’s certificates takes them subject to the rights of parties who have prior liens upon the property and who have not, but should have, been brought before the court. If receiver’s certificates are issued without prior lien holders having been brought before the court, when they do appear or are brought before the court they are entitled to contest the necessity, validity and amount of such certificates as fully as if such questions were then for the first time presented for determination.</p> <p>10. Corporations — Canal Companies — Receivers.</p> <p>A canal company incorporated under the laws of Colorado for the purpose of irrigating its own lands and lands of its grantees is not a quasi public corporation in the sense that the equitable doctrine of preference should apply to it as in case of insolvent railroad corporations. The court has no power to appoint a receiver to conduct the business of such insolvent canal company and to authorize receiver’s certificates for such purpose and to give such certificates a preference over, or co-ordinate lien with, prior mortgage bonds, without the consent of the bondholders.</p>

<p>1. Trust Deeds — Foreclosure Suits — Consolidation.</p> <p>Where a foreclosure suit of a deed of trust was consolidated with another suit to foreclose a subsequent deed of trust over the objection of the trustee which was trustee in both deeds of trust, and where the record shows that the trustee was faithless to its trust and its presence was not essential to the validity of the proceeding and that before final decree was entered the beneficiaries were present in court and in sufficient numbers agreed to the foreclosure and also to the consolidation of the actions, the order of consolidation, although it ought not to have been made, was not prejudicial.</p> <p>2. Mortgages — Subsequently Acquired Land.</p> <p>Where a mortgage provided that property thereafter acquired by the mortgagor and during the life of the mortgage, should become subject to its provisions and be an additional security for the payment of the bonds, and a stockholder of mortgagor surrendered to the trustee part of his stock with which land was purchased in the name of mortgagor, the land so purchased became subject to the mortgage in preference to a subsequent mortgage made by the mortgagor’s grantee which grantee acquired title to all of the first mortgagor’s property by a deed specifically describing the after acquired land. And where in a foreclosure proceeding, no objections were made by the stockholder who surrendered the stock or any assignee of his claim, the second mortgagor cannot object that no title passed to first mortgagor because it did not advance the money to pay for the land.</p> <p>3. Mortgages — Release of Part of Property — Water Rights.</p> <p>Where a trust deed to lands, an irrigating canal and water rights) provided that water rights covered by the deed might be released by the trustee from its lien whenever and as they were sold at a specified price and the proceeds of the sale deposited with the trustee, to be applied to the payment of interest on the bonds, and to a sinking fund for the payment of the principal, and where the mortgagor transferred all of the property covered by the mortgage to another corporation which went into possession and enjoyment of the property, releases to water rights by the trustee to such grantee, even though they were made in consideration of money from time to time advanced by the grantee some of which went to the payment of interest on the bonds, were not in compliance with, the terms of the trnst deed and were properly cancelled.</p> <p>i. Mortgages — Release.</p> <p>Where a mortgage provides for the release therefrom of certain parts of the property upon certain conditions, releases can be made only in strict conformity with the terms of the mortgage</p>

<p>1. Attorney and Client — Legal Advice — Fees.</p> <p>Where a party called twice upon an attorney at law at the attorney’s invitation and upon other business than that connected with the legal profession, and while in the attorney’s office casually asked some questions relating to matters of law, there was no such employment or asking for legal advice as would authorize the attorney to charge a fee therefor.</p> <p>2. Attorneys at Law — Fictitious Bill — Blackmail—Disbarment.</p> <p>Where an attorney at law made a fictitious charge for legal services against an officer of the regular army and rendered a bill therefor itemized as follows: “To consultation in re evading pawnbrokers’ act, city ordinances, state laws, etc. In loaning money on pledges, criminal liability under state laws for acts done on U. S. reservation,” the wording of the bill clearly indicates a purpose upon the part of the attorney, unless his bill was paid, to make an accusation against the officer or to disclose the fact that he had been engaged in questionable practices in violating or attempting to evade the laws of the state, which were of a character that would have tended to lower him in the estimation of his brother officers, friends and the public, and constitutes blackmail as defined in section 1304 Mills Ann. Stats. For such conduct the attorney will be disbarred.</p>

<p>Appellate Practice — Jurisdiction op Supreme Court — Freehold.</p> <p>An action to cancel an alleged fraudulent release of a trust deed and to have the trust deed declared a lien upon the property superior to the title of defendants,, who held under warranty deeds from the grantor in the trust deed executed after the release deed was executed, where no question is raised as to the sufficiency of the warranty deeds as between the grantor and grantee or as to whether or not a fee was thereby conveyed, does not involve a freehold so as to give the supreme court jurisdiction on that ground to review the case.</p>

<p>Constitutional Law — Question erom Senate.</p> <p>A bill requiring corporations to pay their employees semi-monthly in lawful money of the United States, prohibiting contracts in violation thereof and providing penalties for its violation involves private rights and a question from the senate as to the constitutionality of such bill does not invoke the jurisdiction of the supreme court so as to require an opinion thereon under section 3, article 6 of the constitution.</p>

The subject matter of controversy in this case is the area in conflict between the Zara lode mining claim and the Arrighi mill site. Application for patent having been made for the latter the owners of the lode claim filed an adverse, and in support thereof, commenced this action againt the applicant for patent on the mill site. The judgment below was in favor of the plaintiffs. The defendant appeals.

This action was commenced in the court below by plaintiff filing a claim against defendant, as assignee of the Bank of Montrose. The court rendered judgment to the effect that his claim should not be paid until the claims of the regular creditors of the bank were satisfied. From this judgment he brings the case here for review on error. The following are the material facts: The bank was originally capitalized for one hundred thousand dollars.

Action by defendant in error, as plaintiff, to recover from plaintiff in error, as defendant, the sum of ninety-one dollars, claimed as the balance of an account of two hundred and sixty-six dollars for furnishing board, lodging, caring for, and nursing Edmund Koch, alleged to be a pauper on Rio Grande County. From a judgment in favor of plaintiff in the sum of fifty-nine dollars and sixteen cents, defendant brings the case here for review on error.

<p>1. Corporations — Failure to File Annual Statement — Venue.</p> <p>The proper place for trial of an action against the directors of a corporation to recover the statutory penalty for failure to file the annual statement required by section 491 Mills Ann. Stats, is in the county where the corporation had its general office and carried on its principal business and where the annual statement should have been filed.</p> <p>2 Venue — Application to Change Place of Trial — Jurisdiction</p> <p>Where an action is brought in a different county than that fixed by the code as the proper place of trial and an application is made in due time for a change of the place of trial to the proper county, the application ousts the court in which the action is pending of jurisdiction except for the purpose of granting the application and any further proceeding by such court is void.</p>

The complaint has three seperate causes of action. The first is for the recovery of possession of real property from which it is alleged that plaintiff, the owner, was unlawfully ousted by defendant.

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

<p> Appeal from the County Court of Gunnison County. </p> <p> Transferred from Court of Appeals. </p>

<p> On Removal from Court of Apppeals. </p>

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

<p>1. Judgments — Jurisdiction.</p> <p>One of the essentials of a valid judgment is that the court pronouncing it must have jurisdiction to render that particular judgment, and if it appears from the record that the court acted without jurisdiction in pronouncing a judgment it is void.</p> <p>2. Judgments — Joint and Several — Relief Demanded — Jurisdic- ■ TION.</p> <p>Section 169 of the code provides that if there he no answer the relief granted the plaintiff shall not exeed that demanded in the complaint. In an action against several defendants where plaintiff demanded a several judgment against each in proportion to his interest in the subject matter of the suit and did not demand a joint judgment, the court had no jurisdiction to render a, joint judgment against defendants who had not answered and as to such defendants a joint judgment was void. And the fact that some of the defendants had appeared by demurrer did not authorize greater relief against them than that demanded, because the right to such relief is predicated upon an answer. Neither is the general prayer for further relief such a demand as would authorize a judgment for greater relief than tljat specifically demanded.</p> <p>3. Same.</p> <p>The amount of the judgment to which a plaintiff is entitled is a matter within the jurisdiction of the court to determine and an error in this respect does not make the judgment void. The limitation of the code implies that in case no answer is filed the judgment rendered must be of the character demanded in the complaint.</p>

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

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

<p>1. Appellate Practice — Parties—Errors without Injury.</p> <p>In a mandamus proceeding against several parties where the cause is brought to the supreme court for review by only one of the respondents that one cannot take advantage of an error which does him no injury however erroneous the proceedings may have been with respect to his co-respondents.</p> <p>2. Practice — Pleading—Insufficiency of Pleading.</p> <p>The objection that the pleadings do not state a cause of action may be raised at any time, but where no such objection was raised in the trial court previous to the trial on the merits, it is not regarded with favor when raised in the supreme court and will not prevail unless the pleading thus attacked is so radically defective that it will not support the judgment rendered.</p> <p>3. Mandamus — Parties—Pleading - School Districts — Eight to office of School Director. :</p> <p>In an action of mandamus against a school district and certain individuals alleged to constitute the board of -directors for the district an alternative writ which alleged petitioner’s election as a school director and the refusal of the board to issue him' a certificate of election or to recognize him as a member of the hoard or admit him to the enjoyment of the office and prayed that respondents be compelled to issue petitioner a certificate of election and admit him to the rights and privileges of the office and that they be restrained from holding an election for the purpose of electing a director to fill the office to which petitioner had been elected, stated no cause of action against the school district since the district was not responsible for the action of its board of directors, and the school district could not properly be made a party to such controversy.</p> <p>i. Same.</p> <p>In an action of mandamus against a school district and the individual members of the board of directors to compel respondents to admit petitioner to the office of director to which he claimed to have been elected the school district had no interest in the contest and was not injured by the judgment in petitioner’s favor, and where the school district alone brought the case to the supreme court for review it cannot take advantage of any errors which the trial court may have committed in rendering judgment against its co-respondents.</p>

<p> Appeal from the District Court of Fremont County </p>

<p> Original Proceedings on Certiorari. </p>

<p> Error to the District Court of Arapahoe County. </p> <p> On Motion to Dismiss Writ of Error. </p>

Action by defendant in error, as plaintiff, against plaintiffs in error, as defendants, to foreclose two mortgages and a quitclaim deed executed by the latter on real estate belonging to them, for the purpose of securing their promissory note. From a judgment and decree in favor of plaintiff, they bring the case here for review on error.

<p>1. Mines and Mining — Adverse Suits — Evidence—Trespass.</p> <p>In an action in support of an adverse against the issuance of a patent to a mining claim it is incumbent on plaintiff to show as one of the material facts necessary to establish the validity of his location, that it was on unoccupied and unappropriated mineral domain subject to' location. Title to a mining claim cannot be initiated by an entry upon a prior valid, existing location.</p> <p>2. Same — Burden of Proof.</p> <p>In an adverse suit where the defendants were in possession and occupancy of the land in controversy at the time plaintiffs claimed to have made their location and it was claimed that defendants’ original location did not include the land in controversy and that after plaintiffs had made their location defendants amended their location certificate so as to include the controverted land the burden is on the plaintiffs to show that their location was prior to the amendment and that by the amendment defendants extended their boundaries to plaintiffs’ prejudice. And in the absence of such showing it cannot be presumed that defendants changed their boundaries to plaintiffs’ prejudice after plaintiffs’ location was made.</p> <p>3. Practice — Evidence Rejected — Materiality.</p> <p>The ruling of the trial court in rejecting evidence will not be held as erroneous and prejudicial to the party offering it unless it appears from the record that the evidence offered and rejected! was material.</p> <p>4. Mines and Mining — Improvements on one Claim for Benefit of Another.</p> <p>The facts that the improvements on a placer mining claim were utilized for the benefit of a tunnel site would not invalidate ;ne placer location. Neither would the validity of such location depend upon the extraction of ore therefrom.</p> <p>5. Practice — Adverse Suits — Nonsuit.</p> <p>The provision of section 2326 U. S. Rev. Stats, to the effect that in adverse proceedings if title to the ground in controversy is not established in either party, the jury shall so find, and judgment shall be entered accordingly, does not preclude the court from entering a judgment of nonsuit upon defendant’s motion where plaintiff fails to prove facts necessary to make a prima facie case. The plaintiff having failed to prove a cause of action cannot complain that the cause was dismissed.' And the defendant may determine for himself whether or not he desires a verdict upon which a judgment can be based affirmatively establishing his ownership and right of possesssion, and whether he will introduce evidence to secure such verdict.</p> <p>6. Mines and Mining — Placer Locations — Area,</p> <p>The area of a placer location is limited to twenty acres to each locator, but a number of individuals may. locate a claim in common, not exceeding twenty acres to each person, and not to exceed one hundred and sixty acres in any one claim.</p> <p>7. Same — Local Rules and Customs.</p> <p>In an adverse suit against a placer location if plaintiff wishes to attack the validity of defendant’s location on the ground that the local rules and regulations of the district have not been complied with, it is necessary for plaintiff to show what such rules and regulations are.</p> <p>8. Mines and Mining — Amended Certificates — Placer Claims</p> <p>Section 3160 Mills Ann. Stats, providing that the locator of any mining claim may file an additional certificate thereon subject to the provisions of the act, embraces all classes of mining claims and is applicable to placer claims.</p>

<p>Injunctions — Sale under Special Execution.</p> <p>Where a decree is entered foreclosing a mechanic’s lien and ordering a sale of an interest in certain real estate an injunction will not issue in favor of a party in possession and claiming ownership of such real estate to restrain the sheriff from selling such property under the order in the absence of fraud in obtaining such decree, when a sale will not result in gross injustice or irreparable injury to the party seeking to enjoin it, and an action at law to test the validity or effect thereof affords a complete and adequate remedy.</p>

<p>1. Exemplary Damages.</p> <p>In an action by plaintiff against the agents of the owner of the house in which plaintiff resided and a contractor employed by the agents, where it appears that the agents had served notice on plaintiff to vacate the house within ten days, but for the purpose of causing plaintiff to vacate before the expiration of the ten days the agents employed the contractor to begin work at once to tear down the wall so as to render the house uninhabitable and the contractor without knowledge of the scheme of the agent put men to work tearing away part of the wall of the house and the workmen refused to quit work upon request of plaintiff’s wife but continued until they made a large hole in the wall and until they were stopped by an officer, the contractor was liable for such actual damage as plaintiff suffered on account of the acts of his workmen but was not liable for exemplary damage.</p> <p>2. Exemplary Damages--Excessive.</p> <p>In an action by a tenant against the agents of the owner of the house occupied by him for damages for unlawfully and maliciously tearing down the wall of the house for the purpose of rendering It uninhabitable in order to force him to vacate before the expiration of the time .within which he was notified to vacate, where the evidence shows that plaintiff was by reason of the tearing down ol the wall compelled to expend $25 for medicine and medical attendance for his children and was kept away from his work for two days, a verdict for $4,950 exemplary damages is unreasonable and excessive and will not be sustained.</p>

William P. Liafe was employed by the street commissioner of Colorado City to work in a gravel-pit as an ordinary laborer, and while so employed, the gravel bank caved, in and fell upon him, injuring him to such an extent that he was compelled to have his left leg amputated just below the knee.

This action was commenced by defendants in error against plaintiff in error and Robert E. Ellsberry, as co-partners, upon certain promissory notes executed by them, under the firm name of Ellsberry Brothers. Summons was issued and served upon Robert E. Ellsberry alone, the sheriff returning that he had been unable to find Thomas Ellsberry in the county of Arapahoe. Judgment was taken against Robert E. Ellsberry only by default.

<p>Appellate Practice — Jurisdiction op Supreme, Court.</p> <p>The supreme court has no jurisdiction to review a cause transferred from the court of appeals unless it would have jurisdiction of the cause if brought to the supreme court direct from the trial court by fhe same procedure adopted in taking it to the court of appeals. Where a cause is taken to the court of appeals by appeal which the supreme court has not jurisdiction to review on appeal from the lower court, it may not be transferred to the supreme court although the supreme court would have jurisdiction to review the cause brought direct from the lower court on writ of error. And the fact that the appeal was subject to dismissal because not prayed for within the statutory time does not modify the rule.</p>

<p> Appeals from the District Court of Arapahoe County. </p> <p> On Motions of County and City to Refund Revenue Doclcet Fee. </p>

<p>í'rohibition — Jurisdiction of Judges of Supreme Court in Vacation.</p> <p>The judges of the supreme court have no authority in vacation to entertain an application for a writ of prohibition or to enter an order to show cause in such proceeding.</p>

This action was brought by Laura King, as plaintiff (appellant here) against Amos Ackroyd, defendant (appellee), to obtain a decree quieting her title to the waste and seepage water collecting in what is designated in the record the “Ackroyd draw”, and to restrain the defendant from interfering with plaintiff’s use of such water for irrigating her lands.

<p>1. Taxes and Taxatiom — Sale of Realty fob Delinquent Personai Tax.</p> <p>Real estate of one who defaults in the payment of taxes thereon and on his personalty may be sold for delinquent taxes on both.</p> <p>2. Taxes and Taxation — Excessive Tax — Void Sale.</p> <p>A tax sale made for an amount in excess of what is legally due for taxes interest and penalties is void.</p> <p>3. Same.</p> <p>Where town lots were separately listed and valued and the im provements on each were separately valued but in extending the tax on the roll only the total valuation was entered and in apportioning the tax part of the value of the improvements on one lot was added to the other and the latter was sold for the taxes as estimated on this excess valuation, the sale was void,</p> <p>ct. Same — Grantee Agreeing to Pay Taxes — Estoppel.</p> <p>A grantee who agrees to pay all taxes due upon the property conveyed agrees only to pay all taxes lawfully due and is not estopped to object to a sale for excessive taxes.</p>

<p>1. Water Rights — Eminent Domain — Right of Way for Ditch— Constitutional Law.</p> <p>That part of the statute relating to proceedings to condemn lands for right of way for irrigating ditches and reservoirs, which permits the question of necessity for taking the lands sought to be condemned to be enquired into, is not unconstitutional.</p> <p>2. Same.</p> <p>In determining the question of necessity for taking lands sought to be condemned for right of way for irrigating ditches and reservoirs, the question as to whether or not the enterprise is practicable or can be made a financial success,'or what petitioner may be able to accomplish in the way of obtaining water which can be utilized through his proposed ditch or reservoir system, cannot be enquired into.</p>

<p>1. Estates op Decedents — Wilds—Advancements.</p> <p>Where a decedent during her lifetime advanced to some of her heirs sums of money for which they executed their notes and on which they paid interest and in her will these sums were not mentioned, in distributing the estate amongst the heirs under the will these sums so advanced are to be accounted for as debts to the estate and not as gifts.</p> <p>2. Same.</p> <p>Where a son of decedent had received money from her during her lifetime for which he had given his note and in her will appeared this clause “As long as my son lives and his heirs whatever received from my estate is his,” and a codicil to the will specially mentioned the note directing that if presented he should appropriate so much thereof as would compensate him for his services in the settlement of the estate and if more than enough to pay him the balance to be paid to another heir named, the clause referring to whatever was received by him had reference to what he received from the estate under the will and not to money received as a loan during the life of decedent.</p> <p>3. Estates op Decedents — Principad and Agent — Liability op Agent to Estate por Money Loaned for Decedent.</p> <p>Where during the life of decedent her son had the management of her money with authority to loan the same, he was not liable to the estate for money loaned during her life to persons who became insolvent, unless it be shown that he was guilty of negligence in making such loans,</p> <p>i. Estates op Decedents — Evidence—Book Accounts.</p> <p>Where during the life of decedent her son had the management and handling of her money, in an action for an accounting and settlement of the estate the account books of the son are not admissible in evidence without the proper preliminary proof that the books were made and kept in the usual course of trade and business.</p> <p>5. Same.</p> <p>The inhibition imposed by section 4816 Mills Ann. Stats, which provides that no party to an action or person directly interested in the event thereof, shall be allowed to testify therein of his own motion or in his own behalf when the adverse party sues or defends as heir or legatee of a deceased person, does not extend to books of accounts between a party to a proceeding and a deceased person.</p> <p>6. Estates op Decedents — Promissory Notes — Indorsements op Credit — Evid ence.</p> <p>Where during the life of decedent her son had the handling and management of her money and kept in his own possession a note given to her for money loaned to him by her, after her death, in an action for an accounting and settlement of the estate, indorsements of credits made on the back of the note in his own handwriting were not admissible as evidence of payments made on the note.</p> <p>7. Estates op Decedents — Wills—Special Bequests — Lipe Estate —Settlement op Estate.</p> <p>Where a decedent in her will specially bequeathed to her daughter a life estate, in the homestead and then directed the distribution of her estate amongst the heirs, in a settlement and distribution amongst the legatees the value of the life estate so bequeathed cannot be taken into account and charged to the legatee, but where other heirs and legatees conveyed to her their interests in the homestead the value of the interests thus conveyed should be taken into account and charged to her as .part of her legacy under the will, unless a state of facts be disclosed that shows that she was not to account for such interests.</p>

<p>1. District Courts — Records—Presumption.</p> <p>Where the journal kept by the clerk of the district court shows that the court was regularly convened on the first day of a regular term thereof in the proper county district and state, all orders appearing in the book after that date will be presumed to have been entered in due course and by the proper officials of the court at that term unless the contrary appears from the record.</p> <p>2. Same.</p> <p>Where the district court at a regular term entered an order requiring parties to servenotice of an application and that the notice should be made returnable at a certain date to an adjourned term to be holden at that date and on the date mentioned in the order the records recited that the court convened pursuant to adjournment the same being a special term, the records were sufficient to show that the judge of the court adjourned the term until that date although there was no order of adjournment to that date entered of record, and the term held was an adjourned term and not a special tejm.</p> <p>3. Water Rights — Decrees—Conditional—Collateral Attack.</p> <p>A conditional decree entered in an adjudication of water rights is erroneous, but it is not void so as to be subject to collateral attack.</p> <p>4. Wates Rights — Decrees—Failing to Number Ditches.</p> <p>In an adjudication of water rights the failure of a decree to number the ditches as required by statute is merely an irregularity and does not make the decree void so as to be subject to collateral attack.</p>

When the town of Bessemer was incorporated, the tract of land then and now owned by The Colorado Smelting Company was included within its limits. Under “An Act to provide for Contiguous Towns and Cities to become annexed” (Laws of 1893, p. 45), the town of Bessemer and the city of Pueblo were consolidated under the name “City of Pueblo” in the year 1894.

On September 9, 1892, The Shutt Investment Company purchased from E. W. Shutt certain lots situated on Mechanic street between B and C streets in the city of Pueblo, described as lots 23 to 28 inclusive, in block 68; and on the 3rd of March, 1893, in consideration of one dollar and other valuable considerations, E. W. Shutt transferred and assigned to said company all his title and interest in or to any claim or claims for damages which he then had or might thereafter have,…