Volume 33 — Colorado Reports

<p>1. Taxes and Taxation — Maximum Rate by Counties — Ordinary and Extraordinary Revenue — Mandamus.</p> <p>Where a comity was divided into three new counties, and the new county, which, under the division acquired all the county buildings and property, was required to pay to the other counties their proportional part of the value of such county property, a levy of a tax to meet such payment was a levy for extraordinary and not for ordinary county purposes, and Session Laws 1899, page 330, limiting the rate which may be levied by counties of the first class to three mills, on the dollar of valuation does not apply to such levy, and where a writ of mandamus was issued requiring the board of county commissioners to levy a tax for the purpose of creating a fund to pay for such public property, the board could not evade such writ by levying the maximum rate for ordinary county purposes after service of the alternative writ.</p> <p>2. Division of Counties — Apportionment of County Property— Constitutional Law — Parties.</p> <p>Where a county was divided into three counties, and the act making the division required the county to which the county property was awarded to pay to the other counties their respective proportions of the value of such county property and directed that the boards of counfy commissioners of the respective counties should carry out the commands of the act, the boards were the representatives of the legislature in carrying out the purpose of the act and are not competent to raise the question of the constitutionality of the, act, but such question must be raised, if at all, by those directly interested in and affected by its provisions.</p> <p>3. New Counties — County Property — Constitutional Law.</p> <p>In the absence of a constitutional limitation, it is competent for the legislature at the time it carves out a new county from the territory of an old one, or by subsequent legislation, to adjust the property rights and equities existing between the two.</p> <p>4. Statutes and Constitutions — Contemporaneous Legislative Construction.</p> <p>A contemporaneous legislative construction of a statute, or constitutional provision, while not conclusive with the courts, is persuasive.</p> <p>5. Constitutional Amendments — Date of Taking Effect — Stipulation.</p> <p>The date of taking effect of a constitutional amendment cannot be established by admission or agreement of counsel, but must be determined by the court.</p> <p>6. City and County of Denver — Date of Creation — Obligations.</p> <p>Whether article 20 of the constitution took effect on the day it was voted for by the people or at the date of the governor’s proclamation declaring the result of the official canvass, the city and county of Denver which it created did not come into being until the day of the governor’s proclamation, December 1, 1902, and the obligations assumed by said city and county under article 20 were such as existed when it became an organized body and included the claim of Adams county for its proportion of the value of the property of old Arapahoe county established by the act creating the new counties.</p> <p>7. City and County of Denver — County Revenue — Power of Legislature.</p> <p>The city and county of Denver as created by article 20 of the constitution is still a county, and the general assembly, except as otherwise provided in article 20, has the same control over its county funds as it has over the funds of other counties, and unless limited by the constitution may make such provisions for raising and disbursing county revenue as seem to it wise and proper.</p> <p>8. City and County of Denver — Liability to Other New Counties —Mandamus.</p> <p>Article 20 cf the constitution, creating the city and county of Denver, conferred upon said city and county all the property belonging to, and made it liable for the obligations of, the county of Arapahoe from the territory cf which said city and county was taken, hut made no specific provision for the payment to other new counties created out of said Arapahoe county cf their proportion cf the value of said county property. The same session cf the legislature which submitted article 20 as an amendment to the constitution passed an act creating two new counties out cf the territory of Arapahoe county to take effect if such amendment was adopted, and by said act provided for the payment to said counties by the city and county cf Denver of their proportion of the value of the property belonging to Arapahoe county. Held, that the city and county of Denver is liable to such other new counties for said proportional value and its city council may he compelled by mandamus to levy a tax to provide for the payment of such claims.</p>

<p>Elections — Registration Lists — Certification—Fictitious Names— Certiorari.</p> <p>Registration lists should contain only the names of qualified electors, and upon a petition charging that the registration lists in the hands of the election commissioners and which dre about to be copied and sent out to the election judges contain fictitious names and false and fraudulent registrations, and that the judgment of the lower court directs said commissioners to copy such lists in full, the supreme court will by writ of certiorari to the lower court assume jurisdiction and direct such commissioners to omit from the copies certified to the election judges all names which they know to be fictitious, false or fraudulent.</p>

<p> Original Application for Writ of Prohibition. </p>

<p> Original Applications for Writs of Prohibition. </p>

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

<p>1. Fraudulent Representations — Evidence—Intention.</p> <p>The general rule is that a misrepresentation to be actionable must be shown not only to be false but also that the party making it knew it to be false; however, when one makes a false representation positively, or professing to speak as of his own knowledge, and the matters falsely represented are peculiarly within the knowledge of the party making them, and are not known to the party to whom they are made, the intentional falsehood is disclosed and the intention to deceive is inferred.</p> <p>2. Same — Mining Claims — Location of Discovery Shaft.</p> <p>Where the seller of a mining claim exhibited to the purchaser a diagram of the claim which was a copy of the original plat made by the surveyor general and certified by him as correct and filed in the land office with the application for patent, and the plat showed the discovery shaft to be within the boundaries of the claim when in fact it was outside of said' boundaries and upon another patented claim, and' the seller made no representation or statement of his own knowledge that the discovery shaft was within the boundaries of the claim, and neither party had any personal knowledge as to the location of the shaft, the exhibition of the false plat by the seller did not constitute an actionable fraudulent representation.</p> <p>3. Fraudulent Representations — Mutual Mistake — Pleading — Amendment — Variance.</p> <p>In an action by the purchaser of a mining claim to recover back from the seller the purchase price, where the sole ground alleged in the complaint for such recovery was that plaintiff was induced to make such purchase by reason of fraudulent representations made by the seller, plaintiff could not recover on the ground of mutual mistake, neither could the complaint be amended to correspond with the proof and set up a cause of action based on mutual mistake.</p> <p>4. Same — Appellate Practice.</p> <p>In an action by a purchaser of a mining claim against the seller to recover back the purchase price where the only ground alleged in the complaint for such recovery was based upon the fraudulent representations of defendant, and the testimony was confined to the issue of fraud, and judgment was rendered in plaintiff’s favor on what the court considered a fraud in law, on appeal the plaintiff will not be heard to say that the judgment should be sustained on the ground of mutual mistake of the parties.</p>

<p>1. Cities and Towns — Public Streets — Dedication.</p> <p>Where the owner of land in platting a city addition expressly reserved for private use a strip between two blocks and had no intention of dedicating it to the public for a street, the fact that subsequent owners of the two blocks between which it lay, in platting subdivisions of the blocks, treated the strip as a public street, which was not known or acquiesced in by the owner of the strip, could not affect the title of the owner of the strip nor vest any right thereto in the public.</p> <p>2. Evidence — Tax Deeds.</p> <p>A tax deed is prima facie evidence that the property described therein was subject to taxation, and the introduction in evidence of a tax deed establishes a prima facie title in the grantee.</p> <p>3. Cities and Towns — Public Streets — Dedication.</p> <p>Where the owner of land in platting an addition to a city expressly reserved for private use a strip of laud lying between two blocks, the mere fact tkat tlie city graded the strip as a public street and set up sign posts at its intersection witb other streets, placing thereon the names of the streets and used the same for six or seven years as a public street, was not sufficient evidence of acquiescence by the owner to establish a .common-law dedication.</p>

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

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

<p>Mandamus — Amendment—Opinion Followed.</p> <p>For the reasons given in the opinion in School District No. 1 v. School Districts Nos. 7 and 35,. ante, p. 43, the judgment in this case is reversed and the trial court is directed to amend the alternative writ of mandamus to conform to the opinion in that cause.</p>

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

<p>Appellate Practice — Jurisdiction of Supreme Court — Freehold— Mining Lease.</p> <p>An action by the assignee of a lease with option to purchase a mine, against the lessor to restrain him from declaring the lease forfeited, and from entering and taking possession of the mine, did not involve a freehold so as to give the supreme court jurisdiction to review the judgment therein.</p>

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

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

<p> Error to the County Court of Teller County: Hon. Á. S. Frost, Judge. </p>

<p> Original Proceeding. </p>

<p>1. Cities and Towns — Public Improvements — Taxation.</p> <p>In the absence of constitutional restrictions municipal authorities have the right, when lawfully authorized, to direct that the expense of a public improvement be assessed against the real estate specially benefited thereby. The essential element of a public improvement which will authorize a special assessment of real estate is that it shall benefit the property on which the cost thereof is assessed in a manner local in its nature, and which does not attach to other property of like character.</p> <p>2. Same — Viaducts—Special Assessment — Jurisdiction.</p> <p>Where the legislature, by a city charter, delegated to the city authorities power to construct a viaduct-and to determine whether the expenses of its construction should be assessed against the district or the entire city, it was within the province of the city authorities to determine what property was and what was not specially benefited b-y the construction of the viaduct, and whether or not the special benefits conferred on the property embraced within the boundaries of the district were equal to the expense of construction of the viaduct, and the action of the city authorities in determining such questions is conclusive unless it clearly appears that their action was fraudulent or unreasonable.</p> <p>3. Same — Apportionment of Expenses of Construction — Presumptions — Burden of Proof.</p> <p>Where the proper city authorities have, in good faith, endeavored to apportion to each tract and parcel of land in a viaduct district its share of the expense of construction of the viaduct, it will be presumed that the city authorities, in making such assessments, did so with reference alone to the special benefits accruing to the property assessed, and their action will not be annulled unless it is affirmatively shown that the result of the apportionment was not according to benefits, and the burden is upon the party attacking the assessment to make such showing.</p> <p>4. Same.</p> <p>The fact that, in making special assessments for the construction of a viaduct, the city authorities divided the district into sub-districts and assessed each tract or parcel of land in each sub-district at a uniform rate, is not objectionable when it appears that in apportioning the cost to each parcel of real estate the city authorities had in mind that such apportionment must be made according to special benefits, and took into consideration the various matters proper to consider for the purpose of determining what such benefits would be as. to each parcel and then grouped the property into sub-districts which, in their judgment, would be affected alike, and made the assessment accordingly.</p> <p>5. Cities and Towns — Public Improvements — Viaducts—Constitutional Law.</p> <p>The provision of a city charter that the cost of construction of viaducts shall, unless otherwise ordered, be assessed upon, all the real estate in the districts benefited, means the districts specially benefited, and does not give the city authorities unlimited power to assess the expense of a viaduct to particular property without regard to special benefits.</p> <p>6. Cities and Towns — Public Improvements — Special Assessments — Constitutional Law — Notice.</p> <p>A city charter authorizing the assessment of the cost of public improvements against the real estate specially benefited thereby, which provides for due notice to the owners of real estate and affords them an opportunity to be heard upon any and all questions affecting their rights before the assessment is made, is not in violation of that provision of the constitution which declares that no person shall be deprived of property without due process of law.</p> <p>7. Cities and Towns — Public Improvements — Special Assessments — Increase of Cost — Notice.</p> <p>Where, after some steps ha'd been taken to construct a viaduct, it was found that the original estimate of the cost was not sufficient to complete the work and a new estimate was made by the city engineer and notice was given to the owners of property in the district, as required by charter, so that all parties had an opportunity to be heard under the second notice on any question, the same as if it had been the first, the increased estimate was in effect an original estimate, and was not in violation of a charter provision which prohibited the increase in the cost of construction above the original estimate.</p> <p>8. Same — Excessive Assessment — Tender.</p> <p>If a special assessment on real estate for public improvements is in excess of what could properly be assessed and the excess is susceptible of mathematical calculation, the entire assessment would not thereby be invalidated, but only that which is excessive, and before the property owners can take advantage of such excessive assessment they must pay or tender the amount of the valid assessment.</p>

<p>1. Cities and Towns — Storm Sewers — Assessments—Notice— Constitutional Law.</p> <p>A city charter which requires the city clerk to give notice by publication to real estate owners of a storm sewer district, specifying that any complaints filed within a specified time will be heard and determined by the city council before the passage of any ordinance assessing the cost of a storm sewer against the property of the district, and which makes it the duty of the city council, sitting as a board of equalization, to hear and determine all such complaints before the assessment ordinance is passed, affords the owners a sufficient opportunity to be heard and offer testimony on the question of assessments.</p> <p>2. Cities and Towns — Storm Sewers — Assessments.</p> <p>In assessing the cost of a storm sewer against the real estate of the district, a charter provision which requires the cost to be assessed upon all the real estate of the district in proportion as the area of each piece of real estate in the district is to the area of all the real estate in the district, exclusive of public highways, is valid.</p> <p>3. Cities and Towns — Public Improvements — Notice—Constitutional Law.</p> <p>The provision of a city charter authorizing the assessment of the cost of public improvements against the real estate specially benefited, is not unconstitutional because it fails to specifically provide that the city authorities shall give notice to the property owners of the time and place their complaints and objections will be heard, as the city authorities would have power to provide for such notice, if the owners are entitled to notice, without a special charter provision therefor.</p> <p>4. Same.</p> <p>Where a city charter provided that the finding of the city council by ordinance that any public improvements authorized by the charter were duly ordered after notice duly given, should be conclusive in every court or other tribunal, and an ordinance by the city council creating a storm sewer district made such finding, the question as to whether the preliminary notice required by the charter to be given to property owners, was given as required, cannot be inquired into by the courts.</p> <p>5. Cities and Towns — Public Improvements — Ordinance—Publication on Sunday.</p> <p>The fact that an ordinance creating a storm sewer district was published on Sunday, would not invalidate the ordinance.</p> <p>6. Cities and Towns — Public Improvements — Special Assessments — Jurisdiction.</p> <p>Where a city charter confers upon the city authorities power to make public improvements and to assess the cost against real estate specially benefited, with jurisdiction to determine the question of benefits inuring to property, and the property owners of a storm sewer district failed to file with the city council any protest or objection to the assessment of their property as fixed by the council, they were not entitled to be heard in court, in an action to invalidate such assessment, to assert that their property was not benefited but injured by the improvement, and it was error for the court to hear testimony tending to establish such claim.</p> <p>7. Same.</p> <p>Where the property owners of a storm sewer district made no objections before the city council to the assessments on their property, on the ground that property within the district was excluded from the assessment that should have been included, such question cannot be raised in the courts in an action to invalidate the assessments.</p> <p>8. Cities and Towns — Public Improvements — Contracts—Lowest Bid — Discretion—Fraud.</p> <p>Where a city charter provides that all contracts for public improvements shall be let to the “lowest reliable and responsible bidder,” the city authorities are not bound to award the contract to the lowest bidder, but may exercise their judgment and discretion ■ as to the reliability and responsibility of the bidders, and such discretion will not be interfered with by the courts, in the absence of fraud or bad faith.</p>

<p> Appeal from the District Court of Arapahoe County: Hon. Booth M. Malone, Judge. </p>

<p>-1. Practice — Pleading—'Prayer for Relief.</p> <p>Under section 169 of the civil code a plaintiff is -entitled to any relief consistent with the case made by his complaint and embraced within the issue, although not specifically prayed for.</p> <p>2. Same.</p> <p>A defendant cannot- complain of a decree which granted the relief prayed for in his cross-complaint, even though it was erroneous.</p> <p>3. Same — Action for Possession — Decree of Foreclosure.</p> <p>In an action for possession of land which plaintiff alleged he contracted to sell to defendant conditioned upon certain payments to be made by defendant which defendant failed to make, where the defendant answered by cross-complaint alleging facts which relieved him of the obligation of making the payments at the times stipulated and offering to pay the amounts and praying for a decree requiring plaintiff to convey the property to defendant, a decree denying possession to plaintiff but giving him a vendor’s lien on the property, and requiring him to convey to defendant upon -payment of the balance of the purchase price within a time named, and upon defendant’s failure to make the payment the land to be sold to satisfy plaintiff’s lien, was within the issues of the case.</p> <p>4. Contracts — Sales—Deferred Payments — Time—Evidence.</p> <p>In a contract for the sale of land where the contract pro•vided for a certain interest on deferred payments from date and an increased rate after maturity, and where the seller made no demand for the payments at the time they became due, the facts justified a. finding that time was not of the essence of the contract.</p>

<p>1. Instructions — Murder—Menaces.</p> <p>In a prosecution for murder an instruction that “mere words or menaces, no matter how aggravating or abusive, or profane or insulting, do not of themselves constitute a provocation for the commission of the crime of murder in any degree,” is not subject to the objection that the word “menaces” is equivalent to an overt act and means a threat by act or demonstration as distinguished from a threat by words where other instructions clearly distinguish between words and threats, and overt acts.</p> <p>2. Instructions — Murder—Self-Defense—Danger—Bodily Injury.</p> <p>In a prosecution for murder an instruction requested purporting to embody the law defining the right of self-defense where a person entertains a well-grounded fear that he is in imminent danger of being killed, or receiving at the hands of his adversary great bodily injury, was properly refused where the instruction tendered omitted the word “imminent” before the word “danger,” and omitted the word “great” before “bodily injury.”</p> <p>3. Murdei — Evidence—Reputation of Deceased.</p> <p>In a prosecution for murder, evidence on behalf of defendant as to the reputation of deceased for quarrelsomeness, violence and vindictive temper must be confined to reputation in the community in which the deceased resided, and limited to some reasonable time previous to, and connected with, the time of the homicide; and evidence offered not so restricted, and without any showing why the general rule as to proof of reputation should not be followed, was properly excluded.</p> <p>4. Murder — Evidence—Threats.</p> <p>In a prosecution for murder where defendant apd deceased had known each other for many years and defendant had testified that deceased had threatened to kill him, and testified that a few days before the homicide deceased had said to him that he, the deceased, was as game as defendant, and that defendant knew him of old, it was error to refuse to permit defendant to answer the question, what he thought the deceased referred to when he said that defendant knew him of old.</p> <p>5. Instructions — Evidence—Intentions—Credibility.</p> <p>In a prosecution for murder where the defendant testified as to his intentions in committing the act, an instruction which told the jury that if the circumstances connected with the perpetration of the offense convinced them that defendant’s statements as to his intentions were opposed to the circumstances, they should find that his intentions were as manifested by the circumstances, to the exclusion of his evidence, was an invasion of the province of the jury to determine the weight of the evidence and the credibility of witnesses, and was reversible error.</p>

<p> Error to the District Court of La Plata County: Eon. James L. Russell, Judge. </p>

<p> Appeal from the District Court of Summit County: Hon. Frank W. Owers, Judge. </p>

<p>1. Negligence — Comparative Negligence — Instructions.</p> <p>In an action for damages for the death of an employee of a railroad company alleged to have been caused by the negligence of the company, an instruction upon the subject of comparative negligence which told the jury in substance that though they believed the defendant was guilty of negligence, as alleged, yet if the deceased was also guilty of an equal or nearly equal degree of negligence directly contributing to his death, they should find for defendant, was erroneous.</p> <p>2. Negligence — Railroads—Rules—Evidence—Instructions.</p> <p>In an action for damages for the death of an employee of a railroad company, alleged to have been caused by the negligence of the company, where the defendant claims that deceased at the time of his death was riding upon the engine in violation of the rules of the company, the court should construe the rules and determine whether deceased was prohibited from riding upon the engine, and instruct.the jury accordingly; and if so prohibited, the jury should determine whether deceased had knowledge of the existence of the rule, and if so; whether he had permission from the proper authority to ride upon the engine.</p>

<p>1. Appellate Practice — Exceptions.</p> <p>Where no exception was taken to the judgment of the trial court, or to the refusal of the court to grant relief from the judgment, it cannot be reviewed by the supreme court.</p> <p>2. Appellate Practice — New Trials — Nonsuit—Mistake of Law.</p> <p>The fact that the plaintiff in an ejectment suit against whom a judgment was rendered and the court rendering the judgment were of the opinion that plaintiff was entitled to a new trial as a matter of right, and that but for such erroneous opinions the court would have granted plaintiff’s motion for nonsuit, does not authorize the supreme court to set aside the judgment where no error appears in the judgment.</p> <p>3. Judgments — Relief from After Expiration of Term.</p> <p>A motion for relief from a judgment under section 75 of the code, made after the close of the term at which the judgment was rendered, was properly overruled where it does not appear that the party seeking relief was unable to apply for it during the term.</p>

<p> Error to the County Court of Mesa County: Hon. Walter S. Sullivan, J%idge. </p>

<p> Error to the District Court of Pueblo County: I-Ion. John II. Voorhees, Judge. </p>

<p>Evidence — Larceny.</p> <p>In a prosecution for larceny, where the presence of the owner from whom the property was taken cannot he procured as a witness, the fact of the taking and that it was taken without the consent of the owner, may he proven hy other witnesses.</p>

P. L. Palmer, Judge. Action by appellees, as plaintiffs, to annul assessments levied against their property to cover the expense of grading streets in what is known as the North Denver Grading District No. 1. From a judgment in favor of plaintiffs, the defendants appeal. The necessary facts for an understanding of the questions discussed and decided appear in the opinion.

<p> Appeal from the District Court of the City and County of Denver. Hon. P. L. Palmer, Judge. </p>

<p>1. Appellate Practice — Review of Court of Appeals’ Judgment by Supreme Court.</p> <p>There is no distinction between appeals and writs of error so far as they affect the jurisdiction of the supreme court to review judgments of the court of appeals. If the supreme court has not jurisdiction to review a judgment of the court of appeals by one method, it has not jurisdiction to review it by the other.</p> <p>2. Same — Redocketing on Error.</p> <p>Where an appeal from the court of appeals to the supreme court was dismissed for want of jurisdiction, even if the cause should have been redocketed on error, if appellee failed to ask that the cause be redocketed it is too late to raise that question when the cause again comes to the supreme court from a judgment entered by the district court under direction of the court of appeals.</p> <p>3. Appellate Practice — Direction of Judgment — Review.</p> <p>Where the court of appeals directed the trial court to enter a specific judgment, which was entered, the judgment so entered was, in legal effect, the judgment of the court of appeals, and if the supreme court had no jurisdiction to review direct the judgment of the court of appeals, it had not jurisdiction to review the judgment entered by its direction.</p> <p>4. Appellate Practice — Appeal and Writ of Error — Jurisdiction —Waiver.</p> <p>Where the court of appeals had not jurisdiction to review a cause by appeal, but had jurisdiction of the subject-matter, and in case of dismissal of the appeal should have redocketed the case on error, if the appellees appeared and argued the case upon its merits, without asking a dismissal of the appeal, after the appellate court had entered its final judgment in the cause it was too late for appellees to object that jurisdiction by appeal did not lie, and the fact that no order was entered redocketing the cause on error and that the judgment was rendered on appeal, would not make it void.</p> <p>5. Appellate Practice.</p> <p>Where plaintiffs recovered a personal judgment against one defendant, but were denied the relief asked for of making their judgment a lien on the property of other defendants and appealed from the latter part of the judgment to the court of appeals, and appellees on appeal did not present any cross-errors nor object to the amount of the judgment, nor ask that the cause be sent back for a new trial that their right of appeal to the supreme court might be preserved, but only presented the one question that their property was not subject to the lien of the judgment, and the court of appeals having directed that the judgment be made a lien on their property they cannot on appeal to the supreme court from such directed judgment contest the question of the amount of the judgment.</p> <p>6. Appellate' Practice — Void Judgment — Assignment of Errors.</p> <p>In order to attack a judgment on the ground that the court was without jurisdiction to render' it, that ground should be assigned as error.</p> <p>7. Appellate Practice — Directed Judgment — Bill of Exceptions.</p> <p>Where, on appeal to the court of appéals, the judgment was reversed and the lower court was directed to enter a specific judgment, on appeal to the supreme court from such directed judgment, the bill of exceptions which was before the court of appeals cannot be considered by the supreme court.</p> <p>8. Appellate Practice — Jurisdiction.</p> <p>Where, on appeal or writ of error pending in the court of. appeals, of which the supreme court has not jurisdiction, the court of appeals enters final judgment or directs the lower court to render a specific judgment, such judgment is not the subject of review in either appellate court.</p>

Frank W. Oivers, Judge. In June, 1900, an information was filed against plaintiffs in error, charging them with the crime of gambling. Thereafter, at the same term, they pleaded guilty, and at their request, sentence was deferred until the first day of 'the August term succeeding, and they were released on their own recognizance until that date.

P. L. Palmer, Judge. Plaintiffs in error in each of the above entitled causes were convicted of murder in the first degree, and sentenced to suffer the death penalty. They were originally informed against jointly, hut plaintiff in error Arnold was tried separately. The questions presented in each case being in many respects identical, they will be disposed of in one opinion.

<p> Appeal from the District Court of Teller County: Hon. Robt. E. Lewis, J%idge. </p> <p> Motion to Dismiss Appeal. </p>

<p> Appeal from, the District Court of Teller County: Hon. Louis W. Cunningham, Judge. </p>

<p> Appeal from the District Court of San Miguel County: Hon. Theron Stevens, Judge. </p>

<p>1. Negligence — Contributory Negligence — Instructions.</p> <p>In an action for damages for injuries alleged to have been caused by defendant’s employee negligently driving- defendant’s horse, and wagon against plaintiff’s horse, causing him. to run away and to throw plaintiff from the wagon in which she was riding, where defendant claimed that plaintiff was guilty of contributory negligence in jumping from the wagon and in not using ordinary and usual care to manage her horse at the time he started to run, and where there was evidence tending to prove plaintiff’s negligence in failing to manage her horse, it was error to instruct the jury that if plaintiff was placed in peril through defendant’s negligence and in attempting to avoid the peril through the impulse of fear was injured, she was not charged with contributory negligence, and to refuse to give an instruction requested that it was plaintiff’s duty to exercise ordinary care in the use of the means at hand to control her horse, and if she failed to dó so she was guilty of contributory negligence.</p> <p>2. Negligence — New Trial — Newly Discovered Evidence — Feigning Injury.</p> <p>Where plaintiff recovered a judgment against defendant impersonal injuries upon evidence which showed that plaintiff was suffering from permanent paralysis, it was an abuse of discretion and erroneous to refuse to grant defendant’s motion for a new trial on the ground of newly discovered evidence supported by the affidavits of physicians to the effect that they made a physical examination of plaintiff the day before trial, who then assumed to be paralyzed in almost every muscle of the body, that she appeared to be unable to speak a word or to protrude her tongue, and that there was an apparent complete anesthesia of the entire body, and that two days later, and after the cause had been submitted to the jury, they again visited plaintiff and found her sitting on the side of the bed, and that she was able then to protrude her tongue and, talk freely, and was able to walk about the room without support of any kind, and that all symptoms of anesthesia had almost entirely disappeared, and in which the physicians expressed the opinion that plaintiff was not suffering from any organic disease of either the spinal cord or brain.</p>

N. W. Dixon, Judge. The defendant was tried and convicted for a violation of the second clause of a statute, which reads: “Every person who shall, willfully and maliciously, administer, or cause to be administered to, or taken by, any person, any poison or other noxious or destructive substance or liquid, with the intention to cause the death of such person, and being thereof duly convicted, shall be punished by confinement in the penitentiary for a term not less than one…

<p>1. Evidence — Confessions—Statements of Defendant at Coroner’s Inquest.</p> <p>Statements made at a coroner’s inquest are admissible in evidence against the person making them in a subsequent prosecution for the homicide, if the statements were voluntary, but if not voluntary or if obtained by any degree of coercion, they must be rejected. And the question as to whether or not such statements were voluntary must be determined from the facts and circumstances surrounding each case and not by the application of any technical rule.</p> <p>2. Same.</p> <p>Where persons who were suspected of committing a murder and who knew they were suspected but who had not been arrested or formally charged with the murder, testified at the coroner’s inquest without being represented by counsel and without being warned that their statements might be used against them or that they were privileged to refuse to testify if they so elected, statements made in their testimony under the circumstances of this case were not admissible in evidence against them in a trial wherein they were prosecuted for the murder.</p> <p>3. Same — Constitutional Law.</p> <p>Section 18, article 2 of the constitution, providing that “No person shall be compelled to testify against himself in a criminal case,” was not intended merely for the protection of the individual in a criminal prosecution against himself, but to insure that a person could not be required, when acting as a witness in any investigation, to give testimony which might tend to show that he, himself, had committed a crime.</p> <p>4. Same.</p> <p>The constitutional provision 'that no person shall be compelled to testify against himself was not intended merely to protect a party from being compelled to make confession of guilt, but protects him from being compelled to furnish a single link in' a chain of evidence by which his conviction of a criminal offense might be secured.</p> <p>5. Informations — Separate Counts — Election — Principals and Accessories.</p> <p>Where an information charged several persons with the commission of a murder in four different counts, one of which charged them all with the crime as principals; another charged that one of the defendants committed the murder - and that the others ■ advised and encouraged him; the third charged that a different one of the defendants committed the murder and that the others aided and encouraged him; and the fourth charged all of the. defendants with aiding and abetting some unknown person who committed the murder, it was not an abuse of discretion for the trial court to refuse to require the prosecution to elect upon which count it would rely for a conviction, and on review the supreme court will not interfere with the exercise of discretion by the trial court.</p>

<p>Appellate Practice — Certiorari.</p> <p>The supreme court -will not review a judgment or order of the district court by certiorari which the petitioner could have had reviewed either on appeal or error.</p>

<p>1. Appellate Practice — Jurisdiction—Certiorari.</p> <p>In a cause originally brought before a justice of the peace and appealed to the county court and from the county court to the court of appeals, a ruling by the court of appeals that appellant, defendant below, by appearing specially before the justice of the peace to move to quash the summons and abate the action, which motion was overruled, and by failing to object to the jurisdiction of the justice of the peace on the ground that suit was commenced in the wrong precinct, waived that objection and could not raise' it on appeal in the county court, if wrong, was merely error, and is not sitflicient to invest the supreme court with jurisdiction to review its judgment on certiorari.</p> <p>2. Same.</p> <p>A ruling of the court of appeals that a defendant in a suit before a justice of the peace, by appearing specially to move to quash the summons and to abate the action, and by failing to object to the jurisdiction of the justice of the peace on the ground that the suit was commenced in the wrong precinct, waived that objection, and could not raise it on appeal in the county court, is not in conflict with any prior decision of the supreme court so as to give the supreme court jurisdiction to review the judgment of the court of appeals on certiorari.</p>

<p>1. Certiorari — Jurisdiction.</p> <p>A judgment of the court of appeals cannot be reviewed by the supreme court on certiorari, unless the court of appeals was without jurisdiction, or, in pronouncing judgment, ignored some previous decision of the supreme court.</p> <p>2. Same — Estates of Decedents — Discharge of Executor — Action Against Executor.</p> <p>A judgment of-the court of appeals holding that the pendency of an action against an executor for attorney’s fees and to establish a lien against the property of the estate was not sufficient ground for the refusal by the county court to approve the executor’s final report and order his discharge, is not a judgment that can be reviewed by the supreme court on certiorari.</p> <p>3.. Certiorari — Estates of Decedents — Final Report of Executor— Equity — Public Charity.-</p> <p>A proceeding in certiorari brought to review a judgment of an inferior court relating to a final report of an executor, cannot be converted into a suit in equity to administer a public charity created by the will, when the property which- is the foundation of the charity is still in the hands of the. executor.</p>

<p>1. Appellate Practice — Certiorari.</p> <p>A judgment of the court of appeals will not be reviewed by thé supreme court bn writ of certiorari unless the court of appeals was without jurisdiction to render the judgment, or unless in a clear case some decision of the supreme court is ignored, or unless cases, if any, are presented involving the same principles.</p> <p>2. Same — Advancing Case.</p> <p>An order of the court of appeals advancing a case that could not' be advanced as a matter of right under the statute, but which might- be advanced for good cause shown, made and entered in the cause before the case was ready for submission, did not ignore the statute or any decision of the supreme court so as to give the supreme court jurisdiction to review the judgment of the court of appeals by- writ of certiorari.</p> <p>3. Appellate -Practice — Certiorari—Attorneys’ Fees.</p> <p>In an action by an attorney at law against an-executor for an attorney’s fee and to establish a lien against trust -property in- the executor’s hands, a judgment of the court of appeals holding that no contract for a fee had been entered into between the executor and the attorney did not ignore any decision of the supreme court holding that a judgment recovered hy an attorney at law for fees was entitled to a lien upon trust property.</p>

<p> Appeal from the District Court of Fremont County: Eon. M. S. Bailey, Judge. </p>

Frank T. Johnson, Judge. Appellee, as plaintiff, brought an action against appellants, as defendants, to recover damages for the alleged negligence of the defendants in causing the death of his wife. From a judgment in his favor the defendants appeal. The facts necessary to consider, appear in the opinion.

Original Proceeding on Petition for Writ of Prohibition. This is an original application for a writ to prohibit the district court of the city and county of Denver from proceeding further in an action there pending, on the grounds that it has not jurisdiction of the subject-matter of the suit, and has acted therein beyond its legitimate powers.

<p>1. Prohibition — Adequate Remedy.</p> <p>The writ of prohibition will not be issued where the ordinary remedies by law are applicable and adequate, nor will it be permitted to supersede the ordinary functions of an appeal or writ of error.</p> <p>2. Prohibition — Adequate Remedy-r-Divorce — Place of Trial.</p> <p>The defendant, in an action for divorce in the county court of A. county, moved to change the place of trial to M. county, the county of his residence, which being denied he applied to the district court of M. county for a writ of prohibition against the county court, and the county court moved to change the place of trial of the prohibition proceedings to the district court of A. county, which, being denied, application was made to the supreme court for a writ of prohibition against the district court of M. county. Held, that, irrespective of the question of jurisdiction of the district court, the questions to be determined could be determined on appeal from, or writ of error to, the final judgment of the district court, and that the remedy is adequate.</p>

Original Proceeding on Interrogatory from Senate. Tlie honorable .senate of the fifteenth general assembly has transmitted to this court certain interrogatories for opinion and answer. From the statement and resolution accompanying them the following appears: At the last general election the Honorable Alva Adams and tlie Honorable James H. Peabody were rival candidates for the office of governor for the-term beginning on the second Tuesday of January, last.

<p> Appeal from the District Court of Teller County: Hon. Louis W. Cunningham, Judge. </p>

<p>1. Evidence — Testimony of Magistrate as to Ground of Decision.</p> <p>It was not error to exclude the testimony of a police magistrate as to the grounds upon which he based his decision in a case tried before him.</p> <p>2. Cities and Towns — Violation of Ordinance — Former Acquittal.</p> <p>An action brought by a city for the.violation of an ordinance, is quasi criminal, and a plea of former acquittal should be determined by the rule applicable to criminal cases, rather than by the doctrine of res adjudicata, as applied to cases strictly civil.</p> <p>3. Same — Fire Limits — Moving Building.</p> <p>Under an ordinance providing that no wooden building shall be moved into the fire limits of a city from any place beyond the boundaries thereof, nor moved from one place to another within such limits,' a- complaint charging a defendant with moving a wooden building upon a certain lot within the fire limits, without alleging whether such building was moved from without or from some place within the fire limits, is sufficient to sustain a conviction for moving such building from without the fire limits, and an acquittal under such complaint may be pleaded in bar to a subsequent complaint charging that the building was moved from a place beyond the boundaries of the fire limits.</p>

<p>1. Practice in Criminal Cases — Rape—Evidence of Several Acts —Election.</p> <p>Under an information charging the crime of rape to have been committed on a certain day, evidence is admissible of any rape committed by defendant on the prosecuting witness prior to the filing of the information and within the statute of limitations, but where there was evidence of several different acts committed at different times, it was err<?r to refuse to require the prosecuting attorney to elect upon which offense he would rely for a conviction.</p> <p>2. Practice in Criminal Cases — Evidence of Other Offense — Instructions.</p> <p>In cases where evidence of several offenses are admissible as explanatory or corroboratory of the act charged, the jury should be instructed, upon request, as to the 'purpose of admitting such testimony, and that defendant can only be convicted of the offense charged in the information.</p>

<p>1. Habeas Corpus — Constitutional Law — Prohibition.</p> <p>The district court has no jurisdiction by writ of habeas corpus to release from imprisonment a person convicted of crime by a justice of the peace, on the ground that the statute or ordinance on which such conviction was based, is unconstitutional, and the writ of prohibition will be issued by the supreme court to restrain the district court from such action.</p> <p>2. Same.</p> <p>The constitutionality of a statute under which a conviction is had, cannot be tested by writ of habeas corpus, but must be determined by appeal from, or writ of error to, the judgment of conviction.</p>

<p> Error to the District Court of Larimer County: Hon. James E. Garrigues, Judge. </p>

Louis W. Cunningham, Judge. Appellant, as plaintiff, brought an action against appellee, as defendant, and also The Colorado Midland Terminal Railway Company, to recover possession of a tract of real estate, and damages for tbe alleged wrongful detention thereof. Such proceedings were had after the issues were formulated and a trial on the merits commenced, that plaintiff asked and obtained leave to amend his complaint. Instead of amending, he filed an amended complaint.

<p>1. Pleading — Demurrer.</p> <p>Where an answer contains several defenses and a demurrer is interposed to the answer as a who’e, if it contains one good defense, the demurrer should he overruled.</p> <p>2. Quieting Title — Pleading.</p> <p>In an action to quiet title, where plaintiff deraigned title as of a certain date, and alleged possession for more than twenty years and the payment of taxes for seven consecutive years, an answer which pleaded title to the premises in defendant, and deraigned title of a date antedating that of plaintiff, and alleged facts which put in issue the averments of the complaint with respect to plaintiff’s possession, both as to the period of twenty years, and as to the period upon which a right might be based by virtue of the payment of taxes, states a good defense to the action.</p>

Wm. P. Seeds, Judge. The only' question argued and presented for determination by this appeal, is the effect of an additional or amended location certificate, as provided in section 3160, Mills’ Ann.

Theron Stevens, Judge. The question presented by this appeal is the validity of two tax deeds. One R. M. Ficht, claiming to be the owner, and in possession, of the Czar lode, survey number 2008, in Galena mining district, commenced an action against appellant, as defendant, to quiet title to these premises. The defendant answered, claiming to be the owner thereof, by virtue of two certain tax deeds set out haec verba in his answer.

<p>1. Water Rights — Injunction—Judgments.</p> <p>Where a mill owner acquired a water right of a certain number of inches, sufficient to furnish power for running his mill, subject to a prior appropriation by a city from the same stream of a certain amount, and except at certain periods of time during each year the stream did not supply sufficient water to run the mill after the city had diverted its prior appropriation, in an action by the mill owner against the city to enjoin it from interfering with the mill owner’s water, right, a judgment enjoining the city from diverting the waters of the stream above the point of diversion by the mill owner, except to the extent of its prior appropriation, and ordering that the city permit the water of the stream, subject to its prior appropriation, to flow down to the point of the mill owner’s diversion to the extent of, and not to exceed the amount of, the mill appropriation at' such times as the waters in the stream, after the diversion of the city’s prior appropriation, might be sufficient to afford power for running the mill, was proper, and the city could not complain because the decree failed to limit the mill owner’s right to use the water to the periods of time that the evidence showed he had been theretofore able to operate his mill during each year.</p> <p>2. Water Rights — Appropriation for Milling Purposes.</p> <p>The fact that, by reason of climatic conditions, the volume of water in a stream is sufficient to furnish power to run a mill only during certain portions of the year, does not of itself limit an appropriation of water for milling purposes to such periods of time, but whenever the flow in the stream is sufficient for the use for which the appropriation was made, it is available.</p>

<p>Water Rights — Joint Appropriators — Change of Place of Use and Diversion.</p> <p>Where two parties together filed their claim to a certain amount of water and jointly constructed a ditch through which they conveyed the water from the -place of diversion to the place of use, where the water was divided, one-half being used on the separate individual property of each of the two appropriated, they were not tenants in common in the water right, hut each had a separate and several right to one-half of the water appropriated, and either one, or his grantee, lias the right to change the place of use or point of diversion of his one-half of the water, provided such change does not damage or infringe the right of the other.</p>

Theron Stevens, Judge. The merits ■ of this controversy can be better understood from a statement of the circumstances which led up to the institution of the suit and which, in substance, are as follows: From 1881 to 1885 The Evans Mining and Milling Company owned the Nevada lode mining claim, situated in San Miguel county, Colorado, being the property mentioned in the complaint.

<p> Appeal from the District Court of Clear Creek County: Hon. A. H. De France, Judge. </p>

<p>1. Quieting Title — Pleading—Adverse Claim.</p> <p>In an action to quiet tit'e to real estate, it is proper to omit to set out in the complaint the nature and character of defendant’s adverse claim. Such matter should he pleaded in the answer.</p> <p>2. Quieting Title — Tax Deed — Pleading—Departure.</p> <p>In an action to quiet title, where the complaint alleged title and possession in plaintiff, and the answer denied plaintiff’s title and possession and alleged an adverse title under a tax deed, a replication which traversed the material averments of the answer and set up matter charging the invalidity of the tax deed, did not constitute a departure from the complaint.</p> <p>3. Quieting Title — Tax Deed — Ownership—Evidence.</p> <p>In an action to quiet title, where defendant set up an adverse claim under a tax deed, evidence that long prior to the inception of the tax title the person in possession, as owner of the land in question, made a warranty deed purporting to convey the same in fee to plaintiff, was prima facie proof of ownership in fee by plaintiff.</p> <p>4. Quieting Title — Possession—Vacant Lots — Evidence.</p> <p>Ownership in fee of vacant lots carries with it the possession for the purpose of maintaining an action to quiet title in the absence of actual entry and adverse possession by another.</p> <p>5. Same — Tax Deed.</p> <p>Where the holder of a tax deed to vacant lots went to one of the lots, marked out a cellar thereon, drove stakes to outline it and ordered it to be dug, his acts did not operate as a disseizin of the owner in fee of the lots.</p> <p>6. Tax Deeds — Constructive Possession.</p> <p>A tax deed does not operate to give to the grantee therein constructive possession of the premises conveyed.</p> <p>7. Cities and Towns — Constructing Sidewalks — Tax Deeds.</p> <p>In a town where the power to order the construction of sidewalks was in its hoard cf trustees, an assessment of taxes and sale of lots for the costs of a sidewalk which was not prdered by the board of trustees, were nullities, and a tax deed thereunder was void.</p>

<p>1. Pleading — Replication—New Matter — Denial.</p> <p>New matter pleaded in a replication is, perforce the code, denied without further pleading.</p> <p>2. Appellate Practice — Bill of Exceptions — Stipulation of Facts.</p> <p>An agreement of facts, stipulated in writing, upon which the trial court rendered judgment, does not become a part of the record unless made so by bill of exceptions, and in- the absence of such stipulation from the record the appellate court cannot pass upon the correctness of the judgment.</p>

<p> Appeal from the District Court of. Arapahoe County: Hon. Frank T. Johnson, Judge. </p>

JohnH. Voorhees, Judge. The plaintiff in error and the defendants in error were, respectively, plaintiff and defendants below.

<p>1. Judgments — Vacating After Expiration of Term.</p> <p>After the expiration of the term of court at which a judgment is rendered, it is not competent for the court to vacate or set it aside, except as authorized by section 75 of the code, which authorizes the court to relieve a party, or his legal representatives, from a judgment taken against him through mistake, inadvertence, surprise or excusable neglect, and when, for any cause satisfactory to the court, the party aggrieved was unable to apply for relief during the term at which the judgment was rendered, Provided application for such relief is made within six months rfter the adjournment of the term.</p> <p>2. Same — Jurisdiction.</p> <p>The. district court has no jurisdiction to vacate or set aside a judgment upon an 'application made more than six months aftep the expiration of the term of court at which it was rendered, unless the judgment is void. A void judgment may he set aside on motion without .respect to the time the motion is made.'</p> <p>3. Practice — Rules of Court — Setting Case for Trial — Judgments —Vacating—Jurisdiction.</p> <p>The rules of the district court required notice of application to set a ease for trial to he served on the adverse party, and also provided that if a case was not reached for trial at the term for which it was set, it would be reset at the following term in its order without notice. A cause was set for trial upon notice. It was not reached for trial at the time it was set, and, upon application, was transferred to another division of the court, and the parties filed a stipulation that the case might be -set for trial at the convenience of the court after a certain date. The court, without notice, set the case for trial on the day named in the stipulation after which it should he set. The plaintiff failed to appear, and defendants appeared, proceeded to trial and took judgment against plaintiff. Held, that the court was not hound by the stipulation as to the setting of the case, and could set the case for trial at its own convenience without notice to the parties; that the judgment rendered was not void, and, after the expiration of six months from the adjournment of the term, the court had no jurisdiction to vacate cr set aside such judgment.</p> <p>4. Judgments — Vacating—Prohibition.</p> <p>Where a district court has ordered the setting aside of a valid judgment upon an application made more than six months after the expiration of the term of court at which it was rendered, the supreme court will issue a writ of prohibition requiring the district court to take no further steps in the cause and to set aside its order vacating the judgment.</p>

<p>Appeal from the District Court of San Miguel County: Hon. Theron Stevens, Judge.</p>

<p> Original Proceeding and Application for Writ of Prohibition: </p>

<p>1. Corporations — Suit by Stockholders — Parties.</p> <p>In an action by stockholders of a corporation against the president of the corporation for an accounting of the moneys received and disbursed by defendant as president of the corporation, the corporation is a necessary party to the action, since any judgment rendered against defendant must be in favor of the corporation, and a judgment cannot be rendered in favor of one not a party to the action, and if the corporation refuses to prosecute such suit as plaintiff, it must be made a party defendant.</p> <p>2. Parties — Pleading—Demurrer.</p> <p>The rule that a defect of parties must be taken advantage of by demurrer or answer or the defect is waived, does not apply where the party is indispensable and where the court may not proceed to a final decree or judgment without the presence of such party.</p> <p>3. Pleading — Amendment after Judgment.</p> <p>The amendment of a complaint after judgment will not be permitted where the facts which create the necessity for the amendment were as well known prior to the rendering of the judgment as after, and where the effect of the amendment would be to destroy and annul the judgment.</p> <p>4. Same — Parties.</p> <p>After a cause has been dismissed for the failure of plaintiff to make an indispensable party a party defendant, an application to amend the complaint so as to make the necessary party a defendant,- comes too late where the facts .which made the party necessary were known prior to the judgment of dismissal.</p>

<p>Juries — Majority Verdict — Constitutional Law.</p> <p>The statute authorizing a verdict to he found hy less than the entire number of a jury (Session Laws 1899, p. 244), is unconstitutional, and a verdict returned hy less than a unanimous jury is a nullity. ■</p>

<p>1. Replevin — Expert Testimony — Usp of Cow.</p> <p>In an action of replevin to recover a cow and the value of her use, the question as to whether or not a milk cow, when kept and used in connection with the running of a hotel, is profitable, is not a question upon which the opinion of a hotel keeper as an expert witness should be received in evidence.</p> <p>2. Replevin — Measure of Damage — Use of Milk Cow.</p> <p>In an action of replevin to recover a milk cow and the value of her use, where it was plaintiff’s mtention to use such milk cow in connection with the running of a hotel, and where the usable value of the cow exceeded the legal interest on her sale-able value, the measure of plaintiff’s damage was the value of the cow, if she could not be returned, together with her usable value from the time of demand for her return.</p> <p>3. Replevin — Measure cf Damage — Value of Use.</p> <p>In an action of replevin, where the value of the use of the property does not exceed the legal interest on the value of the property, the measure of damage is the value of the property, if it cannot be returned, together with legal interest during the time it was in defendant’s possession, and if the property is returned, its depreciation in value, if any, is also to be added as part of the damage.</p>

<p>1. Chattel Mortgages — Conversion—Consent of Junior Mortgagee.</p> <p>A junior chattel mortgagee cannot question the action of a senior chattel mortgagee in taking into his possession and disposing of the mortgaged chattels and applying the proceeds, after paying expenses and taxes, to the senior mortgage debt, where everything which the senior mortgagee did in connection with the property, was with the consent of the junior mortgagee.</p> <p>2. Chattel Mortgages — Conversion—Trustee.</p> <p>Where, after a chattel mortgage had expired by limitation, suits were brought against the mortgagor by his employees for wages and to complete a sale of the property which had been covered by the chattel mortgage, it was agreed that the purchase price should be paid to the mortgagee whose chattel mortgage had expired, to be by him disbursed amongst the employees who were bringing suits for their wages, which agreement was carried out, the mortgagee, by receiving and paying out the money according to agreement, cannot be charged with converting the property, and is not liable to a junior mortgagee for having failed to apply the money in satisfaction of his claim which was secured by a senior mortgage on other property.</p> <p>3. Appellate Practice — Findings of Fact — Evidence.</p> <p>A finding of fact by the trial court upon conflicting evidence, where there is evidence to support the finding, is conclusive upon the appellate court.</p>

<p>Appeal from the County Court of Fremont County: Hon. Kent L. Eldred, Judge.</p>

<p>1. Deeds of Trust — Foreclosure Sale — Possession — Quieting Title.</p> <p>A sheriff’s deed to vacant lots under a foreclosure sale pursuant-to a decree foreclosing a deed of trust given by the owner in fee, vests in the purchaser the ownership in fee which carries with it the possession of the premises for the purpose of maintaining an action to quiet title in the absence of an actual entry and adverse possession taken by another.</p> <p>2. Evidence — Deeds—Objection.</p> <p>An objection to the admission in evidence of a sheriff’s deed on the ground that “it is in improper form, and because it does not show on its face by what proceeding, step by step, it has been executed,” does not present to the court an objection of variance between the description of the land in the deed, and that in the complaint.</p> <p>3. Appellate Practice — Objections in Lower Court.</p> <p>A judgment will not he reversed on a point which the trial court was given no opportunity to pass upon, which is of such character, that had the objection been made in the court below, the error complained of might have been obviated.</p> <p>4. Quieting Title — Costs—Discretion.</p> <p>The matter of taxing costs in an action to quiet title, is largely in the discretion of the trial court, and it will not be disturbed unless a plain and palpable abuse of such discretion appears. Where the plaintiff in such action secured a decree in his favor, the defendant has no cause to.complain that the costs were divided, since all the costs might have been properly charged against him.</p>

<p> Appeal from the County Court of Rio Grande County: Hon. Alden Bassett, Judge. </p>

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

<p>1. Instructions — Issue Not in Case.</p> <p>It is error to submit to a jury an issue not in the case.</p> <p>2. Same — Mining Claims — Adverse Suit.</p> <p>In an adverse suit, where the uncontradicted testimony of defendant showed that his claim was located upon unappropriated public domain, and all the testimony offered by plaintiff tending to controvert that issue and to show that the defendant’s discovery was made upon a prior, valid, existing location, was stricken out, it was error to refuse to instruct the jury, upon request of defendant, that there was no evidence tending to prove that the discovery was made upon a prior, valid, existing location and that all evidence on that subject should be discarded, and to submit to the jury the issue as to whether or not the location was made upon unappropriated public domain.</p> <p>3. Costs — Stenographer’s Notes.</p> <p>Under the statute providing that for transcribing the shorthand notes of a stenographer, he shall be allowed not exceeding 20 cents per folio of 100 words, the compensation of a stenographer is to be determined only from the number of words transcribed, and not from the punctuation marks made by the stenographer in order to make the transcript intelligible.</p>

<p> Error to the District Court of Arapahoe County: Hon. Calvin P. Butler, Judge. </p>

<p>Error to the District Court of Logan County: Eon. E. E. Armour, Judge.</p>

<p>1. Evidence — Practice—Presumption.</p> <p>In a trial to the court, where- evidence was received only for the purpose of impeachment, it will be presumed that it was considered only for that purpose.</p> <p>2. Appellate .Practice — Assignment of Errors — Evidence.</p> <p>In equity proceedings assignments of error relating to the reception of testimony will not be considered where there is sufficient unobjectionable testimony to uphold the decree.</p> <p>3. Resulting Trusts — Payment of Purchase Price.</p> <p>Where one purchases and pays for real property, causing the title to be conveyed to another without consideration, a trust results in favor of him who paid for the property.</p> <p>4. Resulting Trusts — Gifts—Presumption.</p> <p>Where one purchased real property and took title in the name of his wife, the presumption is that he intended it as a gift, and if he seeks to have a trust declared in the property resulting from his payment of the purchase money, he must show not only that he paid the purchase money, but he must also show that he did not intend it as a gift.</p> <p>5. Resulting Trusts — Husband and Wife — Gifts—Innocent Purchaser.</p> <p>Where a husband bought' and paid for real property and took title in the name of his wife, one who purchased the property from the wife for a valuable consideration, without notice of any equitable claim of the husband, could not be deprived of title to the property at the suit of the husband seeking to establish a resulting trust.</p>

<p>Cities and Towns — Disconnection of Territory — Pleading.</p> <p>In a petition to disconnect" territory from a town, an allegation that the town had not “maintained any streets, lights or other public utilities,” using the conjunction “or” instead of “and,” as used in the statute, is proper.</p>

<p>1. Taxes and Taxation — Void Assessment and Sale — Liability of County.</p> <p>Under section 3776 Mills’ Ann. Stats., making counties liable to the purchaser for 'principal and interest paid for land, which by mistake or double assessment is sold for taxes, upon which no taxes are due, counties are not liable for void sales except where the property was not subject to taxation, or by reason of a double assessment no tax was due. Where a tax sale was void because non-contiguous tracts of land were assessed and sold en masse, and also because the land was sold for personal tax, the county is not liable to the purchaser under said statute.</p> <p>2. Same — Redemption.</p> <p>In an action by the owner of land to redeem from a tax sale where the sale was void because non-contiguous tracts were assessed and sold en masse, the court should, as a condition precedent to setting aside the tax-sale certificate, require the plaintiff to pay to the purchaser the money paid out by him at the tax sale and subsequent' to the sale, as taxes upon the land, together with the interest and penalties prescribed by statute.</p> <p>3. Taxes and Taxation — Land Sold for Personal Tax — Liability of Counties.</p> <p>Where land is erroneously sold for personal tax, the county commissioners should refund to the purchaser the amount of such personal tax.</p>

<p>■Mortgages — Foreclosure—Redemption from Tax Sales — Subrogation.</p> <p>A purchaser at a mortgage foreclosure sale hy redeeming the land so purchased from tax sales and paying the taxes due thereon becomes subrogated to the rights of the state and acquires a superior lien on the land for the taxes paid, which may be enforced against a judgment creditor of the mortgagor who redeemed the land from the mortgage foreclosure sale.</p>

<p>1. Gifts — Delivery.</p> <p>Delivery to the donee, or to some one for his use, of the thing donated, is an essential element of a gift, whether it he a gift inter vivos or causa mortis.</p> <p>2. Same — Bills and Notes — Principal and Agent.</p> <p>Where the payee of a note, prior to his death, directed his friend to take the note from his cash drawer and return it to the payor, which the friend did after the death of the payee, there was no delivery of the note such as would constitute a valid gift, as the death of the payee ended the agency of his friend before he took possession of and delivered the note to the payor</p> <p>3. Bills and Notes — Cancellation—Delivery.</p> <p>The writing of the word “paid” across the face of a note by the payee and signing his name thereto, would not operate to discharge the payor from liability, thereon unless the note so indorsed be delivered to the payor.</p>

<p>1. Cities and Towns — Construction of. Sidewalks — Notice.</p> <p>Under section 2, article X, of the charter of the city of Denver, of 1885, as amended in 1889, providing for the construction of sidewalks, a failure to give notice to lot owners to construct sidewalks, as provided in said section, would invalidate an assessment against the lots of such owners to pay the costs of constructing sidewalks by the city.</p> <p>2. Cities and Towns — Public Improvements — Sidewalks—Denver City Charter.</p> <p>The provision of the charter of 1893 of the city of Denver, to the effect that the determination by the city council, that certain preliminary steps in the construction of public improvements have been taken, is final and conclusive, is not applicable to the construction of sidewalks under section 2, article X, of the charter of 1885, as amended in 1889.</p> <p>3. Same — Limitation—Action to Set Aside Assessment.</p> <p>The provision of section 62, article VII, of the charter of 1893, of the city of Denver, relating to public improvements, limiting the time within which actions may be commenced to question the validity of an assessment authorized by said article, to ninety days from the passage of the ordinance making the final assessment, is not applicable to an action to enjoin the enforcement of an assessment on lots to pay the cost of constructing sidewalks under section 2, article X, of the charter of 1885, as amended in 1889.</p>

<p> Appeal from the District Court of Lincoln County: Hon. William P. Seeds, Judge. </p>

<p>Error to the District Court'of Pueblo County: Hon. N. W. Dixon, Judge.</p> <p> On Rehearing. </p>

<p> Error to the District Court of Pueblo County: Hon. N. W. Dixon, Judge. </p>

<p>Appeal from, the District Court of Arapahoe County: Hon. Frank T. Johnson, Judge.</p>

<p>Appellate Practice — Findings—Evidence.</p> <p>Findings of tile trial court, based upon conflicting evidence, will not be disturbed by the appellate court, where there is evidence to support the findings.</p>

<p> Appeal from the District Court of Arapahoe County: Hon. John I. Mullins, Judge. </p>

<p>Appeal from the District Court of La Plata County: Hon. James L. Russell, Judge.</p>

P. L. Palmer, Judge. This action was originally brought by appellee against appellant and The Cripple Creek Beam Milling Company, and afterwards dismissed as to the company.