Volume 31 — Colorado Reports

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

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

In the original opinion the decree and judgment of the trial court was modified. Certain of the appellants and appellees filed a petition for rehearing. Without granting the petition,' all parties have been heard on the questions thus raised, and while we are still of the opinion that the judgment must he modified, we have also reached the conclusion that the original opinion must he .changed in some particulars.

<p>Receivers — Compensation — Notice—Allowance by Mistake.</p> <p>Where an order fixing the compensation of a receiver was made without notice to the parties in interest and under a mistaken impression on the part of the judge making the allowance that the receiver had served for a much longer time than he really had, the order will be set aside on appeal.</p>

<p> Original Proceeding. </p>

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

<p>1. Practice in Criminal Cases — Empanelling Jury — Peremptory Challenges.</p> <p>In the. absence of a statute regulating the empanelling of juries and the exercise of the privilege of peremptory challenges in the trial of criminal cases, the mode of challenging is left to the sound discretion of the court and unless there has been a manifest abuse of that discretion the action of the trial court will not be disturbed by the appellate court.</p> <p>2. Same.</p> <p>A defendant in a criminal case had used nine of his peremptory challenges and the jury having been filled he was informed by the court that if he wished to challenge any one then in the box he must do so at that time, which he declined to do. The district attorney challenged one man and another juror was called in his place, whereupon defendant sought to exercise his tenth peremptory challenge, but not upon the juror last called, which was denied by the court. Held not an abuse of the court’s discretion.</p>

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

<p> Appeal from the District Coiort of Weld County. </p>

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

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

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

<p>1. Cities and To'wns — Ordinances — Enacting Clause — Statutory Construction.</p> <p>Section 4432, Mills’ Ann. Stats., providing that the style of ordinances in cities and towns shall he: “Be it ordained by the city council or board of trustees of-,” is directory and a substantial compliance therewith is sufficient. An ordinance of an incorporated town with an enacting clause as follows: “Be it ordained by the town council of the town of-,” is a substantial compliance with the statute.</p> <p>2. Cities and Towns — Intoxicating Liquors.</p> <p>Where the town attorney of an incorporated town employed on his own account a private detective to procure evidence' of the violation of the town ordinances prohibiting the sale of intoxicating liquors without a permit, and the detective gave to the prosecuting witness money, but without any direction or instruction to buy whiskey therewith, and with the money, given him by the detective witness purchased whiskey from defendant, it was not a procurement of the violation of its ordinance by the town or its officers such as would estop the town to prosecute the defendant therefor.</p>

<p>1. Water Rights — Adjudicating Priorities — Appellate Practice— Findings.</p> <p>Where on appeal from a decree adjudicating priorities of water rights, the decree was reversed and remanded with the privilege to the parties to introduce further evidence if they chose, and both parties declined to offer further evidence, it was the duty of the court to determine the controverted questions of fact from the evidence then before it, and where its decree is supported by evidence and by the findings of the referee as to the date of priority and amount of appropriation awarded, the decree will not be disturbed by the appellate court.</p> <p>2. Water Rights — Constitutional Law — Map and Statement Statute.</p> <p>Eights to the use of water which depend for their existence upon a compliance with the requirements of the so-called map and statement statute, which has been held unconstitutional, cannot be enforced as against superior rights, notwithstanding the original appropriators of water relied upon the validity of the statute, and the rights of other appropriators of water in the same district have been adjudicated upon the assumption that the statute was valid.</p> <p>3. . Appellate Practice — Second Appeal — Questions Determined on First Appeal.</p> <p>Where on appeal it was determined that appellant was not in a position to raise certain constitutional questions, the same questions cannot be reopened on a second appeal by an appellant who succeeded to the interest of the former appellant.</p>

This is an action under the eminent domain act to acquire hy condemnation a site.for a reservoir for storing water to irrigate farm lands^ The cause was tried before a jury, and from its award and the judgment thereupon entered by the court the land-owner has brought the case here by appeal.

<p>1. Corporations — Bills and Notes — Personal Liability — Findings of Trial Court.</p> <p>Defendant who was president and general manager of two corporations purchased a large number of shares of the treasury stock of one of the corporations for which he executed a note in the name of the other corporation by himself as president. In an action upon the note, against the corporation and defendant personally, the court found that the corporation signing the note had no interest in the transaction and that defendant was the real party in interest and that he had used the name of the corporation on the note to conceal the fact that as president of the company issuing the stock he was selling to himself the stock of such company, and rendered judgment against defendant personally for the amount of the note. The evidence being sufficient to support the findings of the trial court its judgment will be sustained.</p> <p>2. Same — Indorsement of Credits.</p> <p>Where the president of two corporations executed the note of one to the other under such circumstances that he was personally liable thereon,' and a credit was endorsed by him on the note consisting of items which he claimed to have paid for the benefit of the payor company, but which the assignee of the payee afterwards had to pay, a'finding that the credit had been erroneously entered will not be disturbed.</p> <p>3. Corporations — Contracts — Misappropriation of Funds.</p> <p>Where the manager of a corporation to whom was delivered nearly all of the capital stock of the company in consideration of ■certain mining property conveyed by him to the corporation, as part of the transaction by which he acquired the capital stock of the company, agreed to sell a certain number of shares, which had been delivered to him, and to use the.proceeds thereof for the benefit of the company, which offer was accepted by the company, and in accordance therewith he caused certain certificates standing in his individual name to he cancelled and reissued to him as manager of the company, such transaction constituted a valid gift of the shares to the company and he was liable to the company for a misappropriation of the proceeds thereof.</p> <p>4. Appellate Practice — Evidence — Finding of Trial Court.</p> <p>In order to affirm a judgment the appellate court need not be entirely satisfied with the findings of the court or the verdict of the jury where the cause was tried upon oral testimony in open court, hut this rule does not obtain in all its fulness where the evidence is in the form of depositions, as the reviewing court is then in as good position to determine as to the weight and sufficiency of the evidence as the trial court.</p>

<p>Jurisdiction of Supreme Court — Constitutional Question — Contracts — Sale of Watered Milk.</p> <p>An action for milk delivered under a contract, where the defense was that the milk was watered, does not involve a constitutional question so as to give the supreme court jurisdiction to review a judgment therein, on the ground that but for section 69 of the act of 1893 (Session Laws 1893, page 394), making it unlawful to sell watered milk, plaintiff would have had a right to recover even though the milk delivered was watered, and that •said act is -therefore in violation of the constitution as impairing the obligation of contracts. Neither does it involve a debatable constitutional question on the ground that said act embraces more than one subject.</p>

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

<p> Error to the District Court of Weld County. </p> <p> Transferred from Court of Appeals. </p>

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

Appeal Jrom the District Court of Clear Creek County. The main controversy between the parties to this appeal is the question of extra lateral rights between the Refugee and Fairmount lode mining claims. There is a partial conflict between the surface boundaries of the two claims. The owner of the Refugee brought an action in ejectment against the owner and lessee of the Fairmount, claiming that defendants were working a vein apexing in Refugee ground.

<p>Appellate Practice — Jurisdiction of Supreme Court.</p> <p>The supreme court has no jurisdiction to review a cause transferred from the court of appeals, that was taken to that court by appeal, unless the supreme court would have had jurisdiction of the same cause on appeal direct from the trial court.</p>

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

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

<p>1. Contracts — Deeds — Fraud—Cancellation—Return of Purchase Money.</p> <p>In an action' to cancel a deed the delivery of which was alleged to have been procured by defendant’s fraud, where part of the purchase price had been received by plaintiff it was incumbent on plaintiff to offer to return the money received.</p> <p>2. Practice — Pleading — Cancellation of Deed — Damages.</p> <p>In an action to cancel a -deed on the ground of fraud where no damages or legal relief is asked and no facts are alleged in the complaint upon which damages could be awarded, if plaintiff fails to obtain the equitable relief prayed for, he is not entitled to a judgment for damages even though the evidence might show that he was entitled to some relief.</p> <p>3. Same — Purchase Price Not Due.</p> <p>In an action to cancel a deed on the ground that its .delivery was obtained by defendant’s fraud, where part of the purchase price had been paid, and plaintiff fp-ils to obtain a decree cancelling the deed, he is not entitled to a money judgment for the balance of the purchase price, where such balance was not due at the time the action was instituted.</p> <p>4. Corporations — Conveyances — Escrow — Modification of Contract — Authority of President.</p> <p>The entire capital stock of a corporation belonged to a man and his wife except enough held by a daughter to qualify her as a director, and the three constituted the board of directors, the husband- being the president and the wife the secretary and treasurer. The corporation executed a deed to mining property and placed it in escrow to be delivered upon the payment of certain sums. Afterwards by agreement between the grantee and the husband as president of the corporation and with the consent of the wife the escrow contract was modified and the deed delivered upon the immediate payment, before it was due, of a smaller sum1 than was called for.in the contract. Held, that the modification of the contract and the delivery of the deed was binding on the corporation, notwithstanding no formal action was taken by the board of directors authorizing the modification of the terms of the contract.</p>

<p>1. Bills and Notes — Pleading — Evidence—Indorsement.</p> <p>In an action upon a promissory note by an indorsee against tbe maker a denial of tke indorsement by an. unverified answer puts in issue tbe transfer of tbe note and plaintiff must prove tbe transfer.</p> <p>2. Bills and Notes — Indorsement — Evidence.</p> <p>In an action upon a promissory note by an indorsee, possession and production of tbe note at tbe trial by plaintiff with an indorsement thereon of tbe name of tbe payee, is prima facie evidence of title in plaintiff.</p> <p>3. Bills and Notes — Payable to Order — Transferable by Delivery.</p> <p>A promissory note payable to order may be transferred by delivery without indorsement so as to vest in the purchaser a complete title, subject to defenses in favor of tbe maker existing at the time of notice of tbe transfer, and tbe purchaser may maintain an action thereon in bis own name.</p>

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

<p>Appellate Practice — Jurisdiction of Supreme Court.</p> <p>An appeal will not lie to the supreme court from a judgment of the county court quashing a writ of certiorari to a judgment of a justice of the peace taxing the costs of a criminal prosecution against the prosecuting witness, but the appeal will be dismissed and the cause redocketed on error.</p>

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

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

<p> Error to the County Court of Bio Grande County. </p>

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

<p>Judgments — Bonds — Coupons—Res Judicata.</p> <p>A judgment establishing defendant's liability upon a bond' is conclusive against defendant in a subsequent suit upon coupons-cut from such bond as to any defense that might have been pleaded in the former suit whether in fact it was pleaded or not.</p>

Plaintiff in error brought an action in ejectment against the defendants in error. Section 3902a, 3 Mills’ Ann. Stats., provides that a deed shall not issue ■for lands sold for taxes of an assessed valuation of five hundred dollars, unless there has been served •upon the parties specified a notice when the time for redemption from such sale will expire.

Plaintiff in error filed a petition, the.purpose-of which was to obtain an order modifying the judgment for alimony payable periodically, and the custody and control of a minor child as fixed by a decree of divorce rendered in an action between the parties to this proceeding by the court to which the petition of plaintiff in error was addressed.

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

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

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

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

<p>1. Alimony — Separate Maintenance — Appellate Practice — Jurisdiction of Supreme Court.</p> <p>The supreme court has not jurisdiction to review a judgment for temporary alimony in an action hy a wife against her husband for separate maintenance where no divorce is sought, unless the judgment exceeds twenty-five hundred dollars in amount, or unless some question is involved that would give jurisdiction under the court of appeals act.</p> <p>2. Same — Continuing Monthly Alimony.</p> <p>In an action for separate maintenance where judgment is rendered for temporary alimony at a certain rate per month, the fact that the amount may in time exceed $2,500 if the action is prolonged does not make it a judgment for an amount exceeding $2,500 so as to give the supreme court jurisdiction to review thfe judgment, if in fact at the time the review is sought the amount does not exceed that sum.</p>

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

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

<p>1. Pledges — Unauthorized Sale — Conversion.</p> <p>Where collateral security is sold without authority and purchased by the pledgee, it is not a conversion by the pledgee. The pledgor has an election to ratify or disaffirm the sale. If he dis-affirms the sale the property remains in the hands of the pledgee as security subject to redemption by payment of the debt. But if the pledgee by an unauthorized sale puts it out of his power to restore the pledged property he is liable to the pledgor for the amount of the value thereof and a tender of the amount of the debt or demand for the return of the property is not necessary.</p> <p>2. Same — Fraud — Pleading—Evidence.</p> <p>The fact that a pledgee at an unauthorized sale purchased the property at a grossly inadequate price does not entitle the pledgor, in an action by the pledgee on the note, to have the issue of fraud in the purchase of the property submitted to the jury where there was no allegation of fraud in the answer.</p> <p>3. Pledges — Unauthorized Sale — Conversion.</p> <p>Where a pledgee purchased collateral security at an unauthorized sale, the fact that he asserts absolute ownership of the property does not amount to a conversion.</p> <p>4. Contracts — Bills and Notes — Pleading — Evidence—Variance.</p> <p>Where in an action upon.a promissory note defendant set up in an amended answer a counter claim based upon the breach of a contract, but the contract proven was entirely different from the one alleged in his answer, in the absence of a request to amend his answer to correspond with the proof it was not error to direct a verdict for plaintiff, although defendant before giving his testimony had tendered a second amended answer, which was denied because no proper showing was made, in which the contract was alleged in accordance with the proof.</p>

<p> Error to and Appeal from the District Court of Bent County. </p>

Court of Conejos -County. Appellees,, as plaintiffs, brought an action against appellant and Albert W. Melntire, as defendants, upon tbe promissory note of the latter, alleging in, substance as a cause of action against ap: pellant, that .at the time of the maturity of such note the defendants were the several owners of land upon which they promised plaintiffs to secure a loan and discharge such, note, and also one due plaintiffs from' appellant; that at this time plaintiffs…

<p> Appeal from the County Court of Lake County. </p>

Plaintiff in error filed his claim against the estate of Jeremiah Irwin, deceased. The claim was submitted upon an agreed statement of facts, which, so far as necessary to notice, are to the effect that the deceased, plaintiff in error, and Morgan H. Williams became sureties on the bond of an administrator. Such proceedings were thereafter had on this bond against plaintiff in error, that judgment was rendered against him.

Action by plaintiff in error against defendants in error as trustees of Germania Lodge No. 14, Independent Order of Odd Fellows, to recover commissions for the sale of real estate belonging to the lodge. The plaintiff claimed to have obtained his authority to sell the property in question from a Mr. Rinne as the agent of the lodge.

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

The defendant in error executed and delivered his promissory note, in the city of Denver, payable to the Sprague Collection Agency. The payee was a foreign corporation, and at the time of this transaction had not, nor has it since, complied with the law requiring such corporations to pay certain fees before engaging in business in this state. — Session Laws 1897, p. 157.

Appellee brought an action in ejectment to recover from appellant the possession of the Pay Bock lode mining claim. Judgment was rendered in favor of the plaintiff, from which the defendant appeals. Held: upon this testimony, that the tax deed was invalid. Whether or not this holding was correct, is- the only question necessary to consider.

<p>Mines and Mining — Principal and Agent.</p> <p>An agent of a mining company while sinking a shaft in the development of the company’s property discovered a vein upon which another claim was located and while still acting as such agent acquired for himself title to said claim. The mining company was not engaged in acquiring adjacent territory and it was not its policy to purchase any additional claims. Held, that by acquiring title to the. mining claim the agent did not engage in the business of his principal for his own profit or make use of any information obtained through his employment to acquire an interest in his employer’s property adverse to his employer’s interest so as to make such agent a trustee for the benefit of his principal in acquiring such title.</p>

<p>1. Conveyances — Warranties — Description.</p> <p>A mining company executed a bond and' lease in which the property was described as all the ground belonging to the grantor, known as the S. and S. Mining claims excepting a strip of 125 feet of the east side of said claims and referring to the record for a more particular description and followed by the statement, “The said territory embraced within this lease and bond is claimed and said to be 175 by 3,000 feet.” Held, that the conveyance was not a warranty of the entire 1,75 by 3,000 feet, but that the intention was to convey so much thereof as the grantor owned, and where an examination of the records would have disclosed that the grantor did not own all the land included in the 175 feet strip and had excluded part of it in applying for a patent the grantee cannot recover for improvements placed upon the 'ground because of a breach of covenant to convey the entire 175 by 3,000 feet.</p> <p>2. Same — Construction by the Parties.</p> <p>. Where there is any doubt of the meaning of a conveyance as to the description of the property conveyed, resort may be had to the construction, if any, which the parties to the conveyance made.</p> <p>3. Conveyances — Notice.</p> <p>A grantee in a bond and lease is charged with notice of the contents of the bond and an escrow deed as to the property intended to be conveyed.</p>

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

<p>Water Rights — Appellate Practice — Sufficiency of Evidence — Exceptions.</p> <p>On appeal from a decree adjudicating water rights where no exception was taken to the decree by bill of exceptions, and •the transcript does not contain a bill of exceptions and there is no certificate under the hand and seal of the judge that the transcript contains all the evidence, the question as to whether the decree is supported by the evidence cannot be considered.</p>

The defendants were convicted of high misdemeanor under the provisions of the s'tatute concerning mayhem (Laws 1895, 156), upon an information charging that they unlawfully and feloniously deprived the prosecuting witness of his right ear, and disfigured it, and rendered it useless.

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

Appellee brought'an action to recover damages caused by the alleged negligence of the appellants. Prom a judgment rendered on the verdict in favor of plaintiff, the defendants appeal. Inter alia, the court instructed the jury that three-fourths of their number might concur in, and return, a verdict. The verdict rendered was only concurred in by three-fourths of the members- of the jury. To the above instruction, as well as the verdict, the defendants reserved exceptions.

The complaint, filed May 13, 1899, alleges that the defendant is a corporation engaged in the business of generating, producing and distributing electricity and supplying the same for light and other purposes to the general public for profit; that the company, in consideration of the compensation required, was engaged in supplying W. H. Lawrence with electricity for lighting purposes at his residence, No. 247 South Fourteenth street, in the city of Denver ; that it was the…

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

<p> Appeal from the County Court of Hinsdale County. </p>

<p>1. Appellate Practice — Bills of Exception — Motions.</p> <p>Errors assigned to rulings of the court in overruling a motion to quash summons, and in denying a motion to vacate the order overruling the motion, and requiring defendant to answer before the expiration of the legal time for such answer, and in proceeding to trial before the cause was at issue and before any ruling had been made upon certain motions filed by defendant, cannot be considered unless the various motions and rulings attached are brought up in a bill of exceptions.</p> <p>2. —Appellate Practice — Bills of Exception — Filing.</p> <p>The filing of a bill of exceptions in the lower court is a condition prerequisite to its filing in the appellate court.</p> <p>3. Appellate Practice — Abstract of Record — Dismissal.</p> <p>Where an abstract of record does not contain any of the points or matters relied on for a reversal of the judgment, and appellant or plaintiff in error fails to file or offer a good abstract when the defects are called to his attention, the appeal or writ of error will be dismissed.</p>

<p> Error to the County Court of the City and County of Denver. </p>

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

The plaintiff in error and others were convicted of a conspiracy to commit a felony and sentenced to a term in the penitentiary. There are three counts in the information.

<p>1. Murder — Evidence.</p> <p>Evidence examined and held sufficient to sustain a conviction for murder in the second degree.</p> <p>2. Murder — Principals and Accessories.</p> <p>Where two parties went into a store with the preconceived design of taking the life of a party therein and one Of them shot and killed the party the other is equally guilty of murder although he did not fire a single shot. j</p> <p>3. Appellate Practice — Verdicts — Evidence.</p> <p>The verdict of a jury -will not be disturbed on appeal when the testimony and circumstances are such that different minds might conscientiously reach different conclusions as to the facts thereby established.</p> <p>4. Murder — Manslaughter — Instructions—Evidence.</p> <p>In a prosecution for murder where there is no evidence from which the jury would be justified in finding defendant guilty of manslaughter the trial judge is not required to instruct the jury upon manslaughter.</p> <p>5. Same — Failure to Request Instruction.</p> <p>In a prosecution for murder it is not reversible error to fail to instruct the jury upon manslaughter, where no request was made for such instruction.</p> <p>6. —Evidence—Photographs.</p> <p>The fact that a photograph was not taken by a professional photographer does not render it inadmissible in evidence. If it is otherwise competent it is only necessary to show that it is a correct likeness of the objects which it purports to represent, in order to warrant its admission in evidence, and this may be shown by any competent witness.</p> <p>7. Evidence — Hearsay — Non-Prejudlclal.</p> <p>In a prosecution for murder a witness was asked if either of the defendants had said anything to him about an occurrence at the home of one of the defendants a night or two previous to the homicide to which he answered no. He was then asked if any of the defendant’s family had said anything to him. about the occurrence, to which he answered yes, that a brother of defendant had spoken to him on the evening of the homicide. These questions were answered over objections by defendants. The witness was then asked what was said by defendants brother, to which an objection was made and sustained. Held, that the answers of witness were not prejudicial.</p> <p>8. Evidence — Non-Prejudlclal — Appellate Practice.</p> <p>A verdict will not be set' aside for errors committed in the admission of testimony when it appears that such testimony did not prejudice the parties against whom it was admitted.</p>

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

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

Original Proceeding. The controversy is between C. S. Elder, treasurer of Arapahoe county, and Paul J. Sours, treasurer of the city of Denver.

<p> Appeal from the County Court of the City and County of Denver. </p>

<p>Opinion Followed,</p> <p>Writ of error dismissed upon tiie opinion in the case of Montclair v. Thomas, ante, p. 327.</p>

<p>1. Divorce and Alimony — Discretion of Court — Appellate Practice.</p> <p>The appellate court will not interfere with an order allowing temporary alimony unless it appears that there has been a clear abuse of discretion or violation of the law by the lower court in the order made.</p> <p>2. Same.</p> <p>The appellate court will not hold an order allowing a wife $125 counsel fees, and $25 per month temporary alimony, as unjust and an abuse of discretion by the lower court where the husband h'as $3,000 worth of property and is earning $90 per month.</p> <p>3. Same.</p> <p>In an action by a wife for separate maintenance, the fact that the husband sets forth facts in a cross complaint which if true will entitle him to a divorce is not a reason for disallowance of temporary alimony.</p>

<p>Chattel Mortgages — Leases — Replevin.</p> <p>One who holds a sewing machine under a contract of lease from a sewing machine company cannot convey any title or right to'the machine hy chattel mortgage, and the lessor company may recover '.such machine from the mortgagee hy replevin.</p>

<p>Railroads — Right of Way — Public Lands — Mining Claims.</p> <p>Where a railroad company filed its articles of incorporation with the secretary of the interior and a map or plat of its line of road in the United States land office and constructed its road across a mining claim previously located, and the mining claim was afterwards abandoned, the right of way of the railroad company attached to the abandoned claim as soon as it reverted to and became a part of the public lands, without refiling its map, and a subsequent locator of the abandoned mining claim took it subject to the easement of the railroad company of a right of way of 100 feet on each side of the center of its line of track.</p>

<p>1. Corporations — Franchises — Mandamus—Jurisdiction.</p> <p>An action of mandamus by a foreign corporation to compel the secretary of state to file its annual report and to issue to it a certificate that all fees and taxes had been paid, which was refused by the secretary on the ground that 20 years having expired since the corporation filed its certificate of incorporation it had no legal existence in the state, and in which the question of the legal existence of the corporation was treated by both parties as the sole issue, involves a franchise so as to confer upon the supreme court jurisdiction to review the judgment therein.</p> <p>2. Corporations — Foreign Corporations — Terms of Existence.</p> <p>Under section 473, Mills’ Ann. Stats., limiting the term of existence of corporations organized in this state to twenty years and section 499 providing that foreign corporations shall be subject to all the liabilities and restrictions and have no greater powers than corporations organized in the state, the term of existence of a foreign mining corporation will expire in this state in twenty years from the date it files its certificate of incorporation with the secretary of state unless it complies with our statute relating to the extension of the term of existence of corporations, although the term for which it was incorporated in another state may not have expired.</p>

Action was instituted in the court below by the defendant in error, the purpose of which was to restrain the plaintiffs in error, respectively auditor and treasurer of the state, from drawing warrants upon, or paying out funds on account of any appropriation made by what purports to be the general appropriation bill, passed by the last general assembly, and known as House Bill No. 433, filed with the secretary of state.

Plaintiffs in error are respectively members of the board of aldermen and mayor of the city of Denver.

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

<p> Original Proceedings in Quo Warranto. </p>

<p>County Bonds — Coupons — Action Upon — Mandamus.</p> <p>An action for a money judgment will not lie upon coupons from county refunding bonds, but mandamus is the exclusive remedy, except in certain cases, such as a diversion of the fund. If the tax has been levied and collected and is in the hands of the treasurer sufficient to pay the coupons the remedy is mandamus against the treasurer to compel payment. If the board of county commissioners fails to levy a tax to pay the coupons the remedy is mandamus against the board to compel the levy.</p>

<p>1. Instructions — Special Interrogatories to Jury.</p> <p>It is not an abuse of discretion to refuse to submit an interrogatory to a jury, tbe answer to which would not affect the general verdict or the result of the action.</p> <p>2. Cities and Towns — Parties — Negligence—Abatement.</p> <p>The charter of a city provided that no action could be maintained against the city for damages to a person resulting from any defects in the sidewalks of the city which were caused by the negligence of some person other than an employe of the city unless such person should he joined with the city in the same action as defendant. An action was brought against the city for injuries caused hy falling on a defective sidewalk. The city moved to make the owner of the real estate abutting the defective sidewalk a party defendant, which was granted. An amended complaint purporting to state a cause of action against said owner was filed by plaintiff and a general demurrer thereto by said owner was sustained. Defendant city interposed the defense that the abutting owner constructed and maintained the sidewalk, which was put in issue by the replication. Held, that the city was not prejudiced by the orders sustaining the demurrer and dismissing the cause as to the abutting owner since such orders did not prevent the city from taking advantage of the charter provision under its plea in abatement and proving or offering to prove the facts upon which it relied to support its special defense.</p> <p>3. Same — Negligence of Abutting Owner.</p> <p>In an action against a city for injuries caused by a defective sidewalk, the presence of the abutting lot owner as defendant is not necessary to entitle the city, under a sufficient plea, to show that said abutting owner was jointly liable with the city for the result of the .negligence complained of.</p> <p>4. Evidence — Objection — Waiver—Non-Prejudicial.</p> <p>Error committed in the admission of testimony over objection is not prejudicial where the same testimony by other witnesses was afterwards admitted without objection.</p> <p>5. Evidence — Findings — Appellate Practice.</p> <p>When from the testimony and surrounding circumstances it may fairly be inferred that a certain result would probably be caused, a finding of fact that such result was thus caused will not be disturbed on review.</p>

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

<p> Appeal from the District Court' of Clear' Creek County. </p>

<p>Elections — Vacancies — County Officers.</p> <p>The election to be held in November, 1903, for the election of a- judge of the supreme court is a general election within the meaning of section 9, article 14, of-the constitution, providing that persons appointed by the board of county commissioners to fill vacancies in county offices shall hold office until the next general election. The amendment to section 8, article 14, of the constitution changing the time for election of county officers and extending the terms of such officials now in office for one year did not change the manner of filling vacancies in such offices.</p>

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

Plaintiff in error, as defendant, was convicted of several larcenies of livestock. The informations charging the offenses were consolidated for trial. From a judgment sentencing him to a term in the penitentiary, he brings the case here for review on error. The errors assigned are the refusal of the court to permit a witness on behalf of the people to he asked a certain question on cross-examination; admission of improper testimony, and on the instructions given and refused-.

<p>1. Mining Claims — Conflict — Ejectment—Evidence.</p> <p>In an action of ejectment to determine the right of possession to a conflict between two lode mining claims, where the court found as a matter of fact that plaintiffs’ location was invalid because there had been no discovery of mineral upon which to base the location, and where defendants were in possession of their claim, at the time plaintiffs made their location, the plaintiffs cannot be heard to complain that defendants’ location certificate was not sufficient.</p> <p>2. Mining Claims — Conflict — Change of Boundaries — Invalid Location.</p> <p>Where plaintiffs located a mining claim adjoining and with reference to the boundaries of a prior location by defendants, and plaintiffs’ location was invalid because there had been no discovery of mineral on which to base it, and afterwards defendants changed the boundaries of their claim so as to include part of the ground attempted to be located by plaintiffs, but which was in the actual possession of defendants at the time plaintiffs made their location, plaintiffs had acquired no-right to the. ground added to defendants’ claim by their resurvey,..and in an action of ejectment to determine the right of possession fo said ground plaintiffs were not in a position to complain that defendants Changed the boundaries of their claim subsequent to ,the attempted location by plaintiff.</p> <p>3. Parties — Interest in Subject-matter — Evidence.</p> <p>Parties to an action who have no interest in the subject-matter of controversy cannot complain of erroneous ruling's in the admission of testimony, nor the action of their adversaries with respect to such subject-matter which does not affect them. .</p> <p>4. Injunction — Damages — Variance.</p> <p>Where pending -litigation over a mining claim defendants were enjoined from selling or disposing of any ore from the premises in dispute, upon a dissolution of the injunction^ defendants were not entitled to damages based upon a. claim that they were prevented by the injunction from working the property.</p>