Volume 29 — Colorado Reports

<p> Original Proceedings, </p> <p> Applications for Writs of Prohibition, </p>

Original Proceeding. Application for Writ of Prohibition. This proceeding is instituted on behalf of the district attorney of the second judicial district, for the purpose of restraining the district court of that district, the Honorable Frank T. Johnson, the judge presiding over the criminal division thereof from supplanting the relator as adviser of the grand jury.

The complaint alleges: That Thomas Starr, was! on August 17, 1880, the owner in fee of a certain portion of the Starr placer mining claim, in Lake county, Colorado, and on said day caused a portion of the premises so owned by him to be laid out, surveyed, and platted as the Stray Horse Addition to Leadville, and caused a map thereof to be made, designating thereon certain streets, avenues, alleys, and other places, for public use; that said map was, on September 28, 1880,…

The complaint alleges: That The St Louis Smelting and Refining Company, being the owner of certain portions of the Starr placer mining claim in Lake county, Colorado, on April 18 and on June 30, 1879, caused the said premises to be laid out, surveyed, and platted as the St. Louis Smelting and Refining Company’s Addition to the city of Lead-ville, and The St. Louis Smelting and Refining Com pany’s Second Addition to the city of Leadville, and indorsed upon the plats thereof…

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

<p>1. Statutes—Constitutional Law—Taxes and Taxation—Road Tax.</p> <p>Section 3953 Mills Ann. Stats, authorizing the board of county commissioners to levy a property tax for road purposes and providing that at the time of such levy the board shall order that such proportion of the tax levied upon propertylocated in any city or incorporated town as to the commissioners shall seem just and proper, shall be paid to the corporate authorities of such city or town to be used for the sole purpose of improving the streets, alleys and public highways of such city or town is not unconstitutional as being an attempt to indirectly exempt towns and cities from the payment of taxes.</p> <p>2. Cities and Towns—Estoppel.</p> <p>The equitable doctrine of estoppel in fiáis is applicable to cities and towns.</p> <p>3. Laches—Demurrer—Practice.</p> <p>Laches is not a ground for demurrer. The party against whom laches is suggested as a defense should have full and ample opportunity to make the necessary explanation.</p> <p>4. Taxes and Taxation—Road Tax—Discretion of County Commissioners—Cities and Towns.</p> <p>Section 3953 Mills Ann. Stat. authorizing the board of county commissioners to levy a road tax leaves it to the discretion of the board whether any part of such tax shall be apportioned to the cities and incorporated towns of the county, and where the board does make an apportionment, an action may be maintained by such city or town against the county for the amount so apportioned to such city or town but where no apportionment is made by the county commissioners no action can be maintained to recover such taxes paid upon the property located in a city or town,</p>

This action was commenced by appellee, as plaintiff, against appellants, as defendants, to annul a tax sale certificate and tax deed issued thereon to an interest-in the Silver Point lode. P'or answer the defendants claim title to this interest under a tax deed, set out haec verba, which substantially conforms in its recitals with the requirements of 2 Mills Ann. Stat. § 3901, which provides for the form of tax deeds.

Action by appellee, as plaintiff, against appellant and her husband, Henry Brothers, to quiet title to a certain tract of real estate and a water right appropriated and used for the irrigation of the premises in question. The issues formulated by the pleadings were found in favor of plaintiff, and a decree rendered adjudging him the owner of such premises and water right. From this judgment the defendant, Eliza Brothers, brings the case here for review on appeal.

On Motion to Vacate Judgment and Service oj Scire Facias. Plaintiffs in error sued out a sure facias, or summons to hear errors, directed to the sheriff of Eagle county, in accordance with the provisions of Mills Ann.

<p>Appellate Practice—Costs—Receipts in Full for Payment of Part—Cancellation of Receipt—Return of Amount Paid.</p> <p>Where after judgment in the supreme court counsel for the successful party compromised the costs by accepting part of the amount taxed in full of the claim for costs and executed a receipt in full, on motion by the party to cancel the receipt, and for execution for the full amount, the moving party must pay back the amount received before the receipt will be cancelled. A refusal to pay back the amount will be taken as a ratification of the act of counsel in compromising the costs.</p>

Action by defendant in error, as plaintiff, to recover from the city of Durango the sum of $58.95, alleged to be due him for services performed as street supervisor. From a judgment in favor of the plaintiff in the sum of $17.00, the city brings the case here for review on error.

<p>Appellate Practice—Jurisdiction—Cause Transferred From Court of Appeals.</p> <p>The supreme court has no jurisdiction to entertain a cause transferred from the court of appeals, unless it would have jurisdiction of the cause if taken directly from the lower court to the supreme court by the same procedure adopted in taking it to the court of appeals.</p>

<p>1. Appellate Practice—Motion to Dismiss Appeal.</p> <p>Where a motion is filed by appellee to dismiss an appeal and notice thereof is served on appellant’s counsel, it is his duty to appear and resist such motion, and if he fails to do so the court may assume that the motion is confessed.</p> <p>2. Same—Judge of One District Acting for Another.</p> <p>Where the record shows that an order of appeal in a water rights adjudication was presented to and allowed by the judge of another judicial district, while sitting as and for the judge of the district from which the appeal was taken, at his chambers, it will be conclusively presumed that the judge so acting did so at the request cf the regular judge and was duly authorized to act, unless the regular judge disavow such act.</p> <p>3. Same—Judicial Notice.</p> <p>Where the judge of one judicial district acts as and for the judge of another, the supreme court will take judicial notice of the fact that the acting judge is the district judge of his own district.</p>

<p>1. Prohibition—Jurisdiction.</p> <p>The writ of prohibition will only issue to prevent the action of a lower court when the lower court is without jurisdiction in the matter complained of, or is acting in excess of its jurisdiction, and where the complainant has no adequate remedy at law.</p> <p>2. Jurisdiction—District Courts—Grand Juries—Prohibition.</p> <p>The district court has authority to impanel a grand jury and errors committed in the procedure of impanelling such grand jury do not deprive the court of jurisdiction, even though such errors should be so gross and irregular as to require that an indictment found be quashed. Neither is it.in excess of the jurisdiction of the court to excuse jurors who are not disqualified or exempt by the statute although such power be so erroneously exercised as to render an indictment found invalid. Such alleged errors of the district court cannot be investigated upon an application for a writ of prohibition, and do not entitle one accused of crime to a writ of prohibition to prevent such grand jury from acting.</p> <p>3. Practice—Indictment—Motion to Quash—Statutory Construction.</p> <p>The provision of Mills Ann. Stat. § 1433 to the effect that no indictment shall be quashed because of the disqualification of any member ol the grand jury, does not prevent the quashing of indictments for errors and irregularities in impanelling a grand jury, which go directly to the validity of the proceedings.</p>

Appellee instituted an action to condemn a right of way for railroad purposes. From a judgment awarding a right of way and fixing the damages to which appellants were entitled, they bring the case here for review on appeal. The material facts appear in the opinion in connection with the questions decided.

The United Leasing Company, a corporation doing business in Mineral county, bought from the Hendrie & Bolthoff Manufacturing Company for use in one of its mines, a Knowles compound pump, of the value of about $7,500. Realizing.its failing condition, the directors of the Leasing Company, in December, 1895, authorized Eben Smith, a member of the board, to arrange with the Manufacturing Company to take the pump in satisfaction of its debt.

<p>Taxes and Taxation—Unjust Assessment — Appeal—Jurisdiction of Supreme Court.</p> <p>Where a petition was presented to the board o£ county commissioners for a correction of assessment of property for taxation, and from the ruling of the board denying the petition an appeal was taken to the district court, where the petitioner offered to prove the percentage of value at which other property in the county was assessed, which was refusad by the court, the refusal of the court to admit the testimony* only involved the construction of a statute and did not involve a constitutional question so as to give the supreme court jurisdiction on appeal.</p>

<p>For the reasons given in the opinion in the case of The First National Bank of Denver v. Montrose County, ante fi. 114, this appeal is dismissed.</p>

<p>i. Contracts—Fraud—Burden of Proof—Findings of Trial Court.</p> <p>Where the plaintiffs alleged that defendants entered into an unlawful contract for the purpose of cheating and defrauding plaintiffs, and did defraud them of interests in certain mining claims, the burden is on the plaintiffs to establish the allegations, and where the trial court found that plaintiffs had failed to establish the allegations of their complaint by a preponderance of evidence, and the finding was supported by the evidence, it must be affirmed.</p>

<p>t. Appellate Practice—Jurisdiction of Supreme Court.</p> <p>The judgment of a court from which an appeal is taken, and not the relief sought in the action, determines the jurisdiction of the supreme court to entertain the appeal.</p> <p>2. Same—Freehold.</p> <p>Where plaintiffs brought suit to recover an interest in a mining claim and the defendants filed a cross complaint setting.up a contract entitling them to a lien upon the interest sued for and prayed to have such lien decreed, and the case was tried upon the cross-complaint and the defendants recovered a money judgment against plaintiffs and the judgment was decreed to be a lien upon the interest in the mining claim, the judgment does not involve a freehold so as to give the supreme court jurisdiction to review it upon appeal.</p>

The action prosecuted by appellee, as plaintiff, was to enjoin appellant as defendant, from so polluting the water of Beaver Creek, claimed by plaintiff for the purposes of irrigation, as to render it unfit for that use, or thereby injure the ditch through which such water was conducted.

Defendant in error, as plaintiff, brought this action against plaintiff in error, as defendant, on a promissory note of the latter, supplementing the action by an attachment. The affidavit of attachment stated that the chief office or place of business of the defendant corporation is out of the state. No defense was. made to the main action, but the averment of the affidavit of attachment was traversed.

<p>Appellate Practice—Supplemental Transcript.</p> <p>A supplemental transcript will be allowed to bring up an order of the lower court made in the case after the case was at issue in the supreme court on appeal, allowing a receiver compensation for his services and making the award therefor á first and prior lien upon the property in question.</p>

<p>Mining Claims—Assessment Work—Forfeiture by Co-owner for Failure to Contribute—Publication of Notice.</p> <p>Where the owner of an interest in two mining claims attempted to forfeit the interest of his co-owner for failure to contribute his part of the expenditures in doing the assesement work, a published notice which failed to specify the amount of money expended on each claim or facts which might excuse expenditure upon each claim was fatally defective and insufficient to deprive the co-owner of his interest.</p>

The question in this case is. whether real estate, known as Matthews Hall, was exempt from taxation for the year 1893. Appellant, as plaintiff, brought this action to determine the question in the court below. From a judgment holding that the property was not exempt from taxation, it brings the case here for review on appeal. Other property was also involved, but upon argument, the errors assigned were abandoned, except as to Matthews Hall.

<p>f. Husband and Wife—Divorce—Desertion.</p> <p>Desertion that is grounds for divorce consists in the actual ceasing of co-habitation with the intent in the mind of the offending party to desert the other. There is no desertion unless there is an intent upon the part of the one charged therewith to permanently break off the marriage relation, nor where there is a justification for the separation in the consent of the alleged wronged party.</p> <p>2. Same.</p> <p>Where a wife on account of bad health and upon the advice of her physician and with the consent of her husband left her husband in Colorado and went back to visit her relatives in Illinois and remained away four years, and during the first two years a correspondence was kept up between them and the husband sent her some money and promised several times to go to Illinois after her, and after she had been away two years he requested her to return to him, which she declined to do unless he would come to Illinois after her, and wrote him if he could not support her better than he had, she would let some one else do it, but after staying away four years she returned to Colorado and offered to live with him, which he refused, the facts were not sufficient to establish desertion on the part of the wife so as to entitle the husband to a divorce on that ground.</p>

<p>1. Pleading—Statute of Frauds—Contract in Writing—Presumption.</p> <p>Where a complaint alleges that a contract was entered into between the parties for the sale and conveyance of real estate, as against a general demurrer, it will be presumed that the contract was in writing. . ■</p> <p>2. Pleading—Vendor and Vendee—Unlawful Detainer—Ownership.</p> <p>Where a vendee went into possession of real estate in pursuance of a contract of sale, he cannot be heard to question his vendor’s title in an action by the vendor to recover the premises for a failure on the part of the vendee to comply with the contract, and a complaint that alleges such contract of sale and the- failure of the vendee to comply therewith is sufficient as against a general demurrer without an allegation of ownership.</p> <p>3. Practice—Default—Unliquidated Damages—Evidence.</p> <p>In an action for unliquidated damages a default by the defendant is not to be taken as an admission of value or amount of damage, but testimony must be taken upon which to base the amount of the damage,</p> <p>4. Practice—Default—Damage.</p> <p>In an action for unliquidated damages, where the defendant fails to answer, it is error to render judgment for a greater amount than that demanded in the complaint.</p>

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

This cause, now pending under the title of Hill v. Groesbeck et al., is here for the second time.- Upon the first appeal it was entitled Anderson v. Groesbeck et al. This change is accounted for by the fact that, since the former appeal, Mrs. Anderson has, by marriage, become Mrs. Hill. When here before, the judgment of the trial court in favor of the palintiffs was reversed and the cause re-remanded for a new trial. Anderson v. Groesbeeket al. 26 Colo. 3.

Action by plaintiff Merwin, deputy district attorney of Boulder county, against the board of county commissioners of that county to recover compensation for services performed by him in his official capacity in trying criminal causes and conducting preliminary examinations before justices of the peace.

<p>Opinion Followed.—The judgment in this ease is affirmed upon the opinion in the case between the same parties ante p. 169-,</p>

On Proceedings for Contempt. Original Proceeding. An - original proceeding was commenced in this court on September 25, 1901, by the filing of a petition by the attorney general, representing the State Board of Assessors, asking for an alternative writ of prohibition directed to the- district court of Pueblo county and to N. Walter Dixon, the judge thereof. Upon hearing, the alternative writ was issued, returnable October 7, 1901.

<p>r. Divorce&emdash;Temporary Alimony&emdash;Discretion of Court. -</p> <p>The question of temporary alimony in a divorce suit is largely in the discretion of the trial court, and the ruling of the court thereon should not be disturbed unless there is abuse of that discretion.</p> <p>2. Same&emdash;Non-Resident Defendant.</p> <p>Where a wife, defendant in a divorce suit, is a non-resident of the state and desires to come to Colorado to defend the suit, she should be given an opportunity to do so, and the plaintiff should be required to deposit in court a sufficient sum to pay the expenses of the wife from her home to the state to be paid to her upon her arrival, within a reasonable time, with such additional sum as maybe necessary to properly defend the suit.</p> <p>3. Temporary Alimony&emdash;Abatement of Suit.</p> <p>Where a husband, plaintiff in a divorce suit, is unable to make reasonable provision for his wife during the pendency of the suit, the suit should be abated until he is able to do so.</p> <p>4. Divorce&emdash;Citizenship of Plaintiff&emdash;Statutory Construction.</p> <p>Section 6 of the divorce act which provides that no person shall be entitled to a divorce unless such person shall have been a bona fide resident and citizen of the state for one year prior to the commencement of the action should not be so construed as to require such person to be a citizen of the United States. But where a person has been a botia fide resident ©f the state for a year and has declared his intention to become a citizen af the United States, he is a resident and citizen of the state within the meaning of the statute.</p> <p>5. Divorce&emdash;Desertion&emdash;Pleading&emdash;Evidence.</p> <p>In an action.for divorce by a husband against a non-resident wife where the complaint alleged a desertion by the wife at a specified time and a continuance of such desertion up to the time of bringing the action, and there was no intimation in the complaint that plaintiff intended to rely on a refusal of defendant to permit cohabitation prior to the time of the alleged desertion as supporting the charge of desertion, it was error to permit him to testify on the trial that defendant refused to matrimonially cohabit with him prior to the time of the alleged desertion where such tsstimony if true would establish defendant’s unchastity.</p>

<p>1. Appellate Practice—Evidence.</p> <p>A judgment will not be reversed because of the admission of immaterial evidence, where appellant was not prejudiced by its admission and where appellant was as much responsible as appellee for the admission of such evidence.</p> <p>2. Corporations—Trustees—Commingling of Funds.</p> <p>Defendant, a corporation, transferred its personal property to a trustee with authority to dispose of the same and to pay the debts of the company, and the trustee employed plaintiff to manage the affairs of the trust at a stipulated salary per month, afterwards plaintiff was made manager of the corporation’s business and his salary therefor was fixed at a certain salary per year. The corporation continued its business, that of producing crude oil, the same as before the creation of the trust, and the product was commingled with that belonging to the trust fund, and the current expenses of the corporation were paid from the trust fund, and from time to time plaintiff rendered statements to the corporation officers, showing that he had paid himself out of this commingled fund his stipulated monthly salary as manager of the trust fund, and also charged himself with certain sums as payments on his salary as manager for the corporation from the same fund. No objection was made to the method of conducting the business. Held that the course of business adopted by the trustee and the corporation, and sanctioned by the beneficiaries of the trust, was such as to entitle plaintiff not only to his stipulated salary from the trustee, but also to his salary as manager of the corporation business; and that he had a right to pay himself both salaries out of the commingled fund. And having paid himself all his salary as manager of the trust, and part of his salary as manager for the corporation, he could maintain an action against the corporation for the balance, and was not required to apply the amount received to the payment of salary from the corporation.</p>

<p> Original Application for a writ of prohibition. </p>

<p>Appellate Practice—Final Judgment—Pleading.</p> <p>Where a complaint purports to state two causes of action but the subject matter of controversy is the same in each and a demurrer is sustained to one cause of action, leaving the other cause standing, the ruling sustaining the demurrer is not such final judgment as is reviewable on error while the other cause of action remains undecided.</p>

Appeals from the District Court of Mineral County. These actions were commenced by the respective appellees to foreclose mechanics’ liens upon mining property the title to which is vested in appellant. The latter was the lessor of the premises upon which the liens are claimed. The work performed and materials furnished on account of which the liens are asserted were performed and furnished at the instance of the lessee.

<p>Appellate Practice—Jurisdiction of Supreme Court.</p> <p>It is the amount of the judgment rendered and not the value o£ the property in controversy that determines the jurisdictien of the supreme court to review the judgment. Where a judgment was rendered against defendants for $2,000, and also that they be required to assign and turn over to plaintiff a certain number of shares of the capital stock of a mining company together with all dividends declared thereon subsequent to a certain date, but the amount of the dividends was not specified, there was no money judgment except for the $2,000. and the supreme court has not jurisdiction to review the judgment where no other questions are involved to confer such jurisdiction.</p>

<p>1. Appellate Practice—Appeal Bond-^Approval by Deputy Clerk.</p> <p>Where an appeal was allowed and by order of the court the clerk was directed to approve the appeal bond, the bond could be approved by a deputy clerk in the name of his principal.</p> <p>2. Same—Justification of Surety—Signing Affidavit.</p> <p>Where an appeal bond was properly signed on its face by the principal and sureties, and the clerk approving the -bond certified that the sureties appeared before him and made oath to the matters required in the statute, the fact that the sureties did not sign their names to the affidavit would not invalidate the bond.</p>

<p>1. Divorce—Alimony Pendente Lite—Appeal—Practice.</p> <p>A judgment for temporary alimony, attorney fees and suit money in a pending divorce suit is a judgment that may be reviewed in the supreme court.</p> <p>2. Divorce—Alimony Pendnte Lite—Discretion of Court.</p> <p>In a divorce suit where the wife was in indigent circumstances and the husband was a man of large means an allowance of $50 per month as temporary alimony, $250 attorney fees and #25 suit money was not excessive, and was not an abuse of discretion by the trial court.</p> <p>3. Divorce—Alimony Pendente Lite—Proof of Marriage.</p> <p>The allowance of temporary alimony is dependentupon the existence of the marriage relation, and all necessary facts to establish such relation must be made to appear at least frima facie before such allowance is made by the court, but where a frima facie case is established alimony should be awarded.</p> <p>4. Same,</p> <p>Where the complaint in a divorce suit sufficiently alleges the marriage relation, and at the time of the hearing of the petition for temporary alimony no answer had been filed or tendered for filing, although the defendant on the hearing presented an affidavit in the form of a verified answer, which was received and considered, and which was after-wards filed as an answer, setting up facts which if true would render the marriage between plaintiff and defendant void in law, the allegation of marriage at the time stood admitted and temporary alimony was properly allowed.</p> <p>5. Same—Illegal Marriages.</p> <p>In an action for divorce where it is clear upon the admitted facts that the marriage alleged in the complaint is void in law, or where the preponderance of the evidence tends to show that there was never a marriage in fact, temporary alimony should not be awarded, and if awarded will be set aside on review. But where a marriage de facto is admitted and the parties in good faith cohabited as husband and wife, and the legality of the marriage, though denied by the husband, is de. batable, the legal proposition not having been judicially determined in this jurisdiction, it should not be decided upon an application for alimony pendente, lite, and an award of temporary alimony by the trial court will not be disturbed on appeal, because the validity of the marriage is questioned.</p> <p>6. Same.</p> <p>The provision in our divorce statute for the allowance of alimony pendente lite is comprehensive enough to cover a case where there might be some question as to whether the marriage was one de jure provided there was a marriage de facto.</p>

<p>1. Appellate Practice—Findings of Trial Court—Presumptions.</p> <p>In the absence of specific and unambiguous findings of fact to the contrary, appellate courts must assume that the lower court intended to find those facts which are responsive to the issues made by the pleadings, and essential to the judgment rendered. The findings oí fact must be .construed as a whole.</p> <p>2. Findings of Fact—Pleading—Loans—Interest.</p> <p>Where the plaintiff alleged that she loaned to defendant, a corporation, a certain number of shares of the capital stock of defendant, which defendant agreed to return when it was able to do so, and that defendant agreed to pay plaintiff interest on an agreed valuation of the stock, and that defendant had refused to comply with its agreement, and the defendant denied that the stock was borrowed from plaintiff but alleged that it was donated to defendant by plaintiff’s husband, findings of fact by the trial court that plaintiff was the owner of the shares, that she placed them in the hands of her husband as her agent to be transferred to defendant as a loan,' that defendant received them without paying any consideration therefor, and ever since retained and used the same and that there was in the treasury of defendant sufficient of its capital stock to pay the debt to plaintiff, were responsive to the issues made by the pleadings and will support a judgment in favor of plaintiff for the return of the stock. The fact that the court did not find in favor of plaintiff for the interest claimed is not inconsistant with the claim of loan.</p> <p>3. Evidence—Loans—Donations.</p> <p>In an action to recover certain shares of capital stock which plaintiff alleged she loaned to defendant and which defendint claimed were donated to it by plaintiff’s husband, where the evidence shows that the stock belonged to plaintiff, and there was testimony that plaintiff's husband delivered the stock to defendant, representing it as a loan from plaintiff, and the board of directors of defendant understood that the stock was transferred directly from plaintiff to defendant, and subsequently defendant’s secretary executed a receipt in which he acknowleged that the stock had been received of plaintiff’s husband as a part of his subscription to a loan to defendant, tiie evidence was sufficient to sustain the finding of a loan by plaintiff to defendant.</p> <p>4. Judgments —Alternative—Loans.</p> <p>In an action to recover certain shares of capital stock of defendant, a corporation, loaned by plaintiff to defendant, where the trial court found in favor of plaintiff for the return of the stock and found that there was sufficient capital stock in the treasury of defendant to discharge the claim, it was error to render an alternative judgment for the return of the stock or in lieu thereof for its value. The judgment should have been only for a return of the stock.</p>

<p>1. Prohibition—Final Judgment.</p> <p>Where a final judgment in a case has been entered prohibition will not lie to prevent further proceedings in the case even though the court was without authority to enter the judgment, if the party agrieved has some other adequate remedy.</p> <p>2. Same—Certiorari.</p> <p>Where a petition, designated, a petition for a writ of prohibition, is presented to the supreme court to prevent a trial court from proceeding to execute its judgment in a case in which final judgment has been entered, and the petition in substance contains all the requirements of a petition for certiorari and the parties waive all technical questions of pleading that might operate to dismiss the proceeding, the petition may be considered as a petition for certiorari.</p> <p>3. Mines and Mining—Inspection —Jurisdiction—Statutory Construction.</p> <p>Section 364 of the code does not confer upon courts or judges any authority to make an order for the inspection or survey of amine unless there is at the time an action pending in which the inspection or survey is necessary to protect the rights of the litigants.</p>

<p>1. Animals—Bringing into State—Inspection—Statutory Construction.</p> <p>Section 2, page 33$, Session Laws 1885 (Mills Ann. Stat. §4288), making it unlawlul to bring into this state between the first days of April and November any eattle or horses from south of the 36th degree parallel of north latitude unless they have been held at some place north of said parallel for at least 90 days prior to their importation, or unless a certificate or bill of health be procured from the state veterinary sanitary board and requiring the owner to pay the expense of any inspection of such stock, is not in conflict with the act of congress known as the animal industry act, approved May 29, 1884, or the rules and regulations thereunder prescribed by the secretary of agriculture.</p> <p>2. Same.</p> <p>The opinion and advice of the chief inspector of the national bureau of animal industry, to the effect that it was incompetent for a state to charge and collect inspection fees for animals brought into the state is not binding on the courts and is no defense to a prosecution for violat. ing the provisions of section 2, page 335, Session Laws, 1885.</p> <p>3. Same.</p> <p>A certificate or bill of health issued by an agent of the national bureau of animal industry does not do away with the necessity of its holder to obtain a certificate from the state veterinary board before bringing cattle into the state from south of the 36th degree parallel of north latitude.</p> <p>4. Same—Constitutional Law—Inter-state Commerce—Equal Privileges or Citizens—Imposts.</p> <p>Section 2, page 335, Session Laws 1885 (Mills Ann. Stat. §4288), is not in violation of the constitution of the United States article 8, section 1, subdivision 3, conferring upon congress power to regulate inter-state commerce; nor of article 4, section 2, subdivision I, guaranteeing equal privileges of the citizens of the several states; nor is the inspection fee prescribed by said act in any sense an impost tax or duty within the meaning of article 1, section 10, subivision 2.</p>

<p>1. Attorneys at Law—Disbarment Proceedings—Practice.</p> <p>In disbarment proceedings where the petition is upon the relation of the Colorado Bar association neither the petition of the association nor the information of the attorney general is required to be under oath.</p> <p>2. Same—Evidence—Referee.</p> <p>In disbarment proceedings the practice in Colorado is to have the evidence taken and reported by a referee.</p> <p>3. Same—Embezzelment—Trial and Acquittal.</p> <p>The fact that an attorney at law has been tried and acquitted on a charge of embezzment, does not affect the question as to whether he has been guilty of professional misconduct in the transaction, for which he should be disbarred.</p> <p>4. Attorneys at Law—Disbarment—Deception of Client.</p> <p>Where an attorney at law accepted money from a poor woman upon an employment to procure for her a divorce and represented to her that he had brought the suit, but failed to do so, although he knew of the defendant’s presence at the place where suit was to have been brought and his client discovering his deceit employed other counsel to procure the divorce for her, and demanded the return of the money she paid him, which he refused to return, he was guilty of professional misconduct for which he will be disbarred.</p>

Original Proceeding. Question from Senate. The opinion of the court is in response to a resolution and interrogatory of the senate.

<p>Appellate Practice—Shortening Time for. Filing Briffs.</p> <p>A motion by plaintiff in error under rule 18, asking that defendants in eiror be ruled to a shorter time for filing briefs will not be considered where the negligence of plaintiff in enor in. failing to have scire facias issued and served on defendants in error as required by the rules of the court is the cause of the case not being at issue.</p>

At the trial of this action for the 'recovery of possession of real estate brought by the heirs of John Evans, deceased, as plaintiffs, against Mary Welch, claiming to own the same, and Harry E. Maxville, her tenant, the judgment was in favor of defendants. After the writ of error was sued out from this court to review that judgment, Mary Welch died, and her heirs have been substituted as defendants in error.

Petition for Writ of Mandamus. When the appeal of Warren et al v. Adams was before this court at the January, 1894,, term the decree of the lower court holding appellants as trustees for the benefit of appellee of the lands in controversy was affirmed, but its execution was suspended as to the conveyance of the title until the amount found to be due to the appellants, if any, on account of the payment of taxes, was refunded.

<p>1 Appeals—Failure to File Transcript—Dismissal.</p> <p>When there are thirty days between the time of making an appeal to the supreme court and the beginning of the next term of said court and the appellant fails to lodge with the clerk an authenticated copy of the record of the judgment appealed from on or before the third day of said,term, and fails to get an extension of time for filing such record, a record filed after the third day of said term comes too late 'and the appeal will be dismissed.</p> <p>2. Same—Docketing on Error—Jurisdiction.</p> <p>Where an appeal is dismissed for want of jurisdiction to entertain the appeal and the court is in doubt as to whether or not it would have jurisdiction of the cause had it come up on writ of error it may order the case docketed on writ of error without prejudice to the right of appellee on final hearing to move to dismiss for want of jurisdiction.</p>

<p>1. Mines and Mining — Application for Patent. —Res Judicata.</p> <p>Where an application for patent to a placer mining claim was protested on the ground that it was not placer ground and was only valuable for lode claims or townsite purposes and the land department rejected the application for patent because it was not made to appear that the ground was distinctively valuable for placer mining, nor that the applicant had made the improvements required by statute, the action of the land department was not res judicata as to the character of the land in a subsequent proceeding either in the land department or before the courts. The decision of the land department was nothing more than a nonsuit and was not conclusive upon the department itself or upon the parties.</p> <p>2. Same.—Parties.</p> <p>The decision of the land department in rejecting a patent to a placer mining claim is not res judicata as to the character of the land in a subsequent adverse suit between the owner of the placer claim and the owners of lode claims subsequently located within the boundaries of the placer claim where the parties to the adverse suit are not the same as in the former proceeding.</p> <p>3. Mines and Mining -Conflicting Placer and Lode Claims. Trespass.</p> <p>Where lode claims are located within the boundaries of a prior valid existing placer location but before application for patent of the placer claim, if the lode claims were known to exist at the time the lode claimants entered upon the placer the entry was lawful, but if the veins were then unknown, the right of possession belonged to the owner of the placer location and this right of possession included the unknown veins, and the entry of the lode claimants for the purpose of prospecting was a trespass and no title could thereby be initiated.</p> <p>4. Appellate Practice. — Bill of Exceptions.—Evidence-Findings.</p> <p>Where the bill of exceptions does not include the evidence it will be assumed that the evidence sustains the judgment.</p> <p>5. Mines and Mining—Conflicting Placer and Lode Claims. —Adverse Suijts.—Findings of Trial Courts.</p> <p>In an adverse suit between the owner of a placer location and the claimants of lode claims located within the boundaries of the placer, the finding of the trial court that the lode claimants went upon the prior existing placer location and discovered and located lodes therein, involves the finding that the lodes were unknown at the time of the entry.</p> <p>6. Mines and Mining—Conflicting Lode and Placer Claims. .</p> <p>One may not go upon a prior valid placer location to prospect for unknown lodes and get title to lode claims thereafter discovered and located in this manner within the placer boundaries, unless the placer owner has abandoned his claim, waives the trespass, or by his conduct is estopped to complain of it.</p> <p>7. Same.—Harmless Error.</p> <p>A ruling of the trial court that under no circumstances may one, before application for a patent of a placer claim, go upon the ground within its exterior boundaries for the purpose of locating a lode, is erroneous, but the ruling must be limited to the facts disclosed by the record, and when the record discloses that the veins or lodes were unknown at the time the lode claimants entered upon the placer for the purpose of prospecting, the error is not prejudicial.</p> <p> On Rehearing. </p> <p>8. Appellate Practice. — Rehearing.—Supplemental Tran, script.</p> <p>A supplemental transcript will not be permitted on rehearing to bring up proceedings in the trial court which occurred subsequent to final judgment and to which no error was assigned on the original hearing, if the matters embodied in the supplemental transcript were known to plaintiff in error before the cause was argued and submitted on original hearing.</p> <p>9. Appellate Practice.—Evidence.</p> <p>Where the transcript does not purport to contain all of the evidence the reviewing court cannot investigate to ascertain on which side- the preponderance of the evidence is, but must assume that the findings of the trial court are sustained by the evidence.</p> <p>10. Mines and Mining—Known Lode in Placer Claim.</p> <p>Before it can be said that a lode is known to exist within a placer location so as to authorize one to enter thereon and locate the same there must be actual knowledge of its existence as - contradistinguished from a belief or supposition that it does exist.</p>

<p>1. Evidence—Contradiction of Witnesses.</p> <p>The testimony of a witness material to the issue on trial may be contradicted as to any fact or circumstance which tends to corroborate and strengthen his testimony, and for this purpose a party has the right to call witnesses to contradict material evidence given by a witness for his adversary, and the credit of such witness may also be attacked by proof of independent facts and circumstances which are inconsistent with his testimony.</p> <p>2. Same—Larceny.</p> <p>In a prosecution of defendant for the larceny of a building where he defendant claimed to have purchased the building from the agent uf the owner, and as an incident to her defense it was said that the agent was present when defendant began to tear the building down, and the agent having died the substance of his testimony given at the preliminary hearing, to the effect that at the time the building was removed and at the time defendant claimed to have made the purchase he was confined to his bed, with sickness, and knew nothing about its removal until he recovered, was introduced in rebuttal on behalf of the people, it was error to refuse to permit defendant to prove by a witness that the agent was present when the building was being torn down and removed, on the ground that the evidence should have been introduced in the main defense.</p> <p>3. Evidence—Contradiction of Witness.</p> <p>The rule that a witness cannot be impeached by showing that he has made statements at other times inconsistant with his testimony without the foundation be first laid by interrogating the witness does not apply where the attempt to contradict a witness merely consists of showing acts and circumstances inconsistant with his testimony.</p> <p>4. Appellate Practice—Criminal Case—Record.</p> <p>In a criminal case where a transcript is filed certified by the clerk of the district court as being a complete copy of certain orders entered in the case and it appears from what is designated in the transcript as an “order” that defendant has been convicted of the crime charged and sentenced to the penitentiary, the transcript is sufficent to show that a final judgment has been pronounced against defendant such as the supreme court has authority to review.</p>

<p>1. Negligence—Employer and Employee—Safe Place to Work—Vice-Principal.</p> <p>An employer is required to use ordinary care in providing a reasonably safe place for his employees to work in, and an employee to whom is delegated the performance of work which involves this duty becomes the representative of the employer and negligence in the performance of such work by such employee is negligence of the employer, as to other employees engaged in different work.</p> <p>2. Same—Evidence.</p> <p>Defendant, a mining compony, was engaged in sinking a shaft and it became necessary to extend the water pipe connected with the pump. Deceased assisted in placing- two stulls to support the pipe, one of which was secured and the other was not. There was testimony to the effect that the chief timberman in charge enquired of the pumpman how far apart the stulls should be placed and was informed that one stul should not be permanently fastened until the pipe was laid. That the timberman cautioned deceased to be sure and nail the stull when the pipe was laid. After this the timberman had nothing further to do with the work and the deceased and others went to work under the direction of the pumpman whose duty it was to supervise the putting down of the pipe. After the pipe was laid enquiry was made of the pumpman if the stull should not be nailed and he replied in the presence and hearing of deceased that he would attend to nailing the stull, but failed to do so. Three days later deceased and others went to the bottom of the shaft and in moving the pump the stull fell and killed deceased. Held that there was evidence tending to show that the pumpman occupied the position of vice-principal with reference to the work being done at the time of the injury and that plaintiff had a right to rely on his promise to secure the stull, and tending to prove culpable negligence on the part of the company, and the absence of contributory negligence on the part of deceased, and that the testimony would sustain a verdict for plainiff if the jury were properly instructed.</p> <p>3. Negligence—Employer and Employee—Instructions.</p> <p>In an action for damages against a mining company on account of the death of an employee alleged to have been caused by defendant’s negligence, the following instruction was given to the jury: “The jury is instructed that the rule which obtains in the -state of Colorado is that for the acts of a vice-principal done within the scope of his employ, ment, and such as properly devolve upon the master in his general duty to his servants, the master is liable; while for all such acts as relate to the common employment which are on a level with the acts of the fellow-laborer, except such acts as are done by the vice-principal against the reasonable objection of the injured servant, the master is responsible. In other words, the test of liability is the character of the act, rather than the relative rank of the servant.” To this instruction an exception was noted as follows: “Defendant then and there, and at the time, duly excepted to the court’s giving the foregoing instruction to the jury, and to the giving of each paragraph thereof.” Held that the instruction was fatally erroneous in omitting the word “not” before the word “responsible,” and that the exception was sufficient to raise the question on review. Mr. Justice Steele dissenting.</p>

<p>Contracts—Employer and Employee—Burden of Proof—Instructions.</p> <p>In an action by a stenographer against her employer for a balance claimed to be due for services performed under a contract of employment at a specified salary per week, where defendant admitted the • original contract of employment, but claimed that the original contract was terminated, and that after its termination, although plaintiff remained at his office and performed some services for him, it was under a different arrangement, whereby she was to receive no salary, the defense was merely a denial that plaintiff had rendered services for him under her contract of hire after a certain date and was not an affirmative defense, and an instruction that placed upon defendant the burden of proof to establish the termination of the contract was erroneous.</p>

<p>Mortgages - — -Delivery — Condition Precedent — Foreclosure.</p> <p>Plaintiff and defendant were the joint owners of two mining claims. Defendant agreed to advance plaintiff’s half of the money necessary to secure patent if plaintiff would secure him by deed of trust to his interest in the claims. Plaintiff executed his note to defendant for the estimated amount secured by the deed of trust and left them with an attorney to be delivered to defendant upon the execution and delivery by defendant to plaintiff of a declaration of use showing for what purpose the money was to be expended. In violation of his instructions the attorney delivered the note and deed of trust to defendant without the execution of the declaration and before all the work in procuring the patent had been done or paid for the deed of trust was foreclosed and defendant bid in the property. Held that the foreclosure was unauthorized and the sale was properly set aside for two reasons: first, because the condition precedent, not having been complied with there was no legal delivery of the note and deed of trust; and second, because defendant had not performed his part of the contract so as to entitle him to a foreclosure. And the defendant not having been induced to act as he did through anything said or done or omitted by plaintiff nor his condition changed for the worse by any reliance upon plaintiff’s conduct, plaintiff was not estopped to deny the validity of the delivery of the note and trust deed.</p>

<p>Water Rights—Adjudication of Priorities—Appeals—Parties.</p> <p>Seetion 2427 Mills Ann. Stat. relating to appeals in proceedings to adjudicate priorities of water rights authorizes an appeal from such proceedings only by the parties representing any ditch, which means the owners or persons controlling the ditch and does not give an appeal to all persons interested in the ditch as water consumers. Such water consumers are not entitled to an appeal because of the failure of the owner of the ditch to perfect its appeal where such failure is due to a mistake in the procedure regulating such appeal and not from any fraud or intentional neglect of duty to its consumers.</p>

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

<p> Original proceeding on application for writ of habeas corpus. </p>

1 Mills Ann. Stat. §§ 939 to 944. The bonds recite upon their face that they are part of an issue of funding bonds aggregating $500,000, and were made payable to different persons. Plaintiff did not receive them direct from the county, but bought them in the open market, and is a bone fide purchaser, before maturity, for value, without notice of defects therein, if any, other than that furnished to the public by the constitution and laws of the state.

<p>1. Water Rights—Change of Point of Diversion—Statutory Constriction.</p> <p>The act of April 6, i8gg, Session Laws i8gg page 235, providing that persons desiring to change the point of diverting water from any stream shall procure a decree for that purpose from the district court which issued the original decree after due notice to all parties who may be affected by such change, is valid and provides an exclusive remedy and method of making such change and applies as well where the qualified right to make such change existed prior to the passage of the act.</p> <p>2. Same—Public Policy.</p> <p>The objects of the statute relating to the change of the point of diversion of water for irrigation are, inter alia, to protect public officers in distributing water for irrigation, to preserve the peace and avoid a multiplicity of suits and their necessary costs, and parties may not by their conduct or by waiving their purely private rights, render nugatory such statute, or relieve a person desiring to make such change from following the procedure prescribed, and it is the duty of the court to enforce the statute and sua sjbonte to require that all persons who may be affected by the desired change be notified of the proceeding and given an opportunity to be heard.</p>

This is an action by S. G. McMullin, district attorney of the seventh judicial district, in which Montrose county is situate, against the board of county commissioners of that county to recover a statutory commission in collecting $10,250 from the bondsmen of its county treasurer. The trial was to the court without a jury upon an agreed statement of facts, which resulted in a dismissal of the action, from which the plaintiff appealed to the court of appeals.

<p>1. appellate Practice—Bills of Exceptions.</p> <p>If for any reason a bill of exceptions is defective, or cannot be considered, a motion to strike out would be proper but it would not be ground for a motion to dismiss the appeal, as appellant .would still be entitled to have his appeal heard upon matters disclosed in the record proper.</p> <p>2. Appellate Practice—Motion to Dismiss Appeal—Record Presumption.</p> <p>On motion to dismiss an appeal on the ground that the time for filing the appeal bond and tendering bill of exceptions was extended with out notice to appellee, where it appears from the record as certified that the orders extending the time were granted upon the application of appellant and it does not affirmatively appear whether or not notice of the application was given appellee, it will be presumed that appellee had due notice, and affidavits to the contrary will not be considered, but appellee will be given leave to apply to the lower court to amend the record so as to show, if such is the fact, that the orders extending the time were obtained ex parte.</p>

<p>1. Cities and Towns—Ordinances—Injunction.</p> <p>Only in extreme and exceptional cases should courts of equity interfere by injunction with municipal authorities in the enforcement of penal ordinances of the municipality.</p> <p>2. Intoxicating Liquors—Saloons—Wine Rooms—Statutes.</p> <p>If section 423 MíIIb Ann. Stat., which preserves to all citizens of the state equal enjoyment of places of public resort or amusement, gave to women the right equally with men to frequent saloons, and if such right depended solely upon statute, it was taken away by the general assembly, when at a later date it adopted a charter for the city of Denver, whereby authority was conferred upon the city to deprive women of such right.</p> <p>3. Cities and towns—Ordinances—Validity.</p> <p>If a city ordinance passed under cover of the incidental powers of the city appears to the court to be unreasonable, unfair, partial, arbitrary or oppressive, it may be nullified. But if such ordinance is expressly authorized by the general assembly in the form in which it is expressed and is not in violation of the constitution it cannot be nullified for any of those reasons.</p> <p>4. Cities and Towns—Intoxicating Liquors—Wine Rooms—Constitutional Law.</p> <p>That section of the charter of the city of Denver and sections of the city ordinances passed thereunder which prohibit the keeper of any liquor saloon, dram shop or tippling house from keeping in connection therewith any wine room or other place into which any female person may enter to be there supplied with any kind of liquor, and prohibit such keeper from permitting any female person from frequenting such wine room there to be supplied with liquor are not in violation of any provision of either the United States or state constitution.</p>

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

On Rehearing. Action by defendant in error, as plaintiff for the use of his wards, against plaintiffs in error, as defendants, sureties on the bond of the former guardian of the minor wards. From' a judgment against them, the sureties bring the case here for review on error.

<p>1. Practice—Pleading—Motion to Make More Specific.</p> <p>In an action against a raining company for damage for personal injuries alleged to have been caused by an ore car falling down the shaft in which plaintiff was at work it was not error to deny defendant’s motion to make the complaint more specific by alleging whether or not the person in charge of the car was a servant or employee of defendant, as that fact was known by defendant. And where upon the trial it was shown that the person in charge of the ore car was an employee of defendant’s lessee it was immaterial that the complaint did not allege whether or not he was an employee of defendant.</p> <p>2. Practice—Instructions.,</p> <p>It is not error to refuse to give an instruction asked if it is in substance given in another instruction.</p> <p>3. Same—Reading from the Pleading.</p> <p>The fact that the court in its instructions read certain allegations from the complaint and answer is not errorneous if thereby he correctly stated the issues to the jury.</p> <p>4. Instructions—Negligence.</p> <p>In an action for damage for injuries alleged to have been caused by defendant’s negligence, an instruction that directed the jury to find for plaintiff if they should find that the injuries were "occasioned" by defendant’s negligence is not misleading because the court used the word “occasioned” instead of “caused.”</p> <p>5. Saaie—Measure of Damages.</p> <p>In an action for damage for personal injuries an instruction that told the jury that in estimating plaintiff's damages they “should also consider the nature of the injuries suffered as to whether they are likely to prove permanent, or temporary only,” is not objectionable on the ground that the use of the word “likely” permitted and encouraged the jury to indulge in conjecture and speculation in determining the extent of plaintiff’s injuries.</p> <p>6. Negligence—Mines and Mining.</p> <p>Where a mining company leased the different levels of its mine, the lessees delivering their ores to the company at the shaft, who hoisted it to the surface for them, and a person working for the company at the bottom of the shaft was injured by an ore car escaping from an employee of a lessee in one of the levels and falling down the shaft, and the accident was caused by reason of the tracks on which the ore cars ran being laid with two much grade and because no barrier was placed at the shaft to stop the cars and prevent them from running into the shaft, and it was shown that the level was in the same condition when turned over to the lessee as when the injury occurred, the company was responsible for the condition of the level and was liable for injuries caused by the negligence in maintaining the track with an excessive grade and in not providing a sufficient barrier to stop the cars at the shaft.</p> <p>7. Saaie—Proximate Cause.</p> <p>Where a mining company leased one of the levels of its mine with the track for running ore cars from the face of the mine to the shaft where the ore was delivered to the company and by it hoisted to the surface, and the track was constructed on such grade that a loaded car would of its own motion run down the track to the shaft, and no barrier was provided to stop the cars and prevent them from running into the shaft, and a car escaped from an employee of the lessee and ran into and fell down the shaft injuring an employee of the company working at the bottom of the shaft, the proximate cause of the injury was the negligence of the mining company in maintaining the track with an excessive grade and failing to provide a sufficient barrier to stop the cars and prevent them from running into the shaft. „</p> <p>8. Negligence—Personal Injuries—Excessive Damage.</p> <p>The appellate court is not warranted in disturbing a verdict for damage for personal injuries on the ground that it is excessive unless the amount allowed is so manifestly disproportionate to the injury as to make it apparent that the jury were influenced by prejudice, misap" prehension or by some corrupt or improper consideration.</p> <p>9. Same.</p> <p>Where in an action for damage for personal injuries, the evidence shows that plaintiff’s injuries had caused the amputation of one leg, the loss of the use of two fingers and that his skull was fractured, a verdict for $15,000 is not excessive.</p>

<p>1. Cities and Towns—Defective Sidewalks—Negligence—Instructions.</p> <p>In an action against a city for damage for injuries caused by falling on the sidewalk, where the evidence showed the defect to be slight, it was error to refuse to instruct the jury at request of defendant that to hold defendant liable the defect causing the injury must be such as v ould justify one in reasonably anticipating an accident therefrom.</p> <p>2. Same.</p> <p>In an action against a city for damage for injuries caused by falling or, the sidewalk where the evidence showed that at the time of the accidentthe sidewalk at the place of the accidentwas slippery from melting snow and ice and the accident occurred in daylight, the jury should hav* been instructed that under such condition of increased danger there was imposed upon plaintiff an increased degree of care, and it was error to refuse such an instruction requested by defendant.</p>

Original Proceedings in Quo Warranto. This information in quo warranto by the people of the state of Colorado, upon the relation of Charles C. Post, its attorney general, filed on the 9th day of September, 1901, charged that for eight months then last past the defendant, Frank W- Owers, had usurped and intruded into, and was unlawfully holding and exercising the office of judge of the district court of the fifth judicial district of the state of Colorado, and called upon him…