Volume 34 — Colorado Reports

Theron Stevens, Judge. This case was tried to the court upon an agreed statement of facts from which it appears, inter alia, that appellant existed as a fraternal organization prior to its incorporation, under its present name. In August, 1890, it held what is termed a head camp session in Denver, Colorado, at which there were adopted certain by-law’s and regulations of the organization known as “fundamental laws” for the government of head and local camps and camp bylaws.

<p>1. Sales — Warranty of Title — Breach—Measure of Damage.</p> <p>In an action for breach of warranty of title in the sale of certain shares of stock in a corporation, the measure of damage is the purchase price paid for the stock with interest and not the value of the stock and dividends paid thereon.</p>

<p>1. Judgments — Liens—Findings.</p> <p>The finding of the trial court as to what interest in certain land a judgment debtor acquired under a will is immaterial to a judgment creditor whose judgment lien did not attach until after whatever interest said debtor acquired had passed to another under a prior judgment lien.</p> <p>2. Appellate Practice — Findings—Decree—Exceptions.</p> <p>In a proceeding to foreclose a mortgage if a party is dissatisfied with the finding of the referee or decree, objection should be made to such finding' or decree in the lower court, and in the absence of an exception to such finding or decree they will not be reviewed by the appellate court.</p> <p>3. Mortgages — Foreclosure—Decree—Subsequent Lienholder.</p> <p>A subsequent lienholder is not prejudiced by a decree foreclosing a mortgage which provides that if any surplus remains from the proceeds of sale after satisfying the decree it shall be paid into court and that such subsequent lienholder shall have an opportunity to assert its claim thereto.</p> <p>4. Same — Marshaling Assets — Appellate Practice.</p> <p>In a review of a decree foreclosing a mortgage the appellate court will not go into the question of marshaling assets where no exceptions were taken either to the findings or decree of the lower court upon that matter.</p>

<p>Appellate Practice — Findings—Evidence.</p> <p>Findings of the trial court upon evidence substantially conflicting are conclusive upon the appellate court.</p>

Christian A. Bennett, Judge. Action for damages for personal injuries on the ground of negligence. From a judgment for plaintiff, defendant appeals. The injury was caused by the explosion of a “missed hole,” while plaintiff was sinking a winze in defendant’s mine.

<p> Appeal from the District Court of Boulder County: Hon. Christian A. Bennett, Judge. </p>

<p> Appeal from the District Court of Arapahoe County: Hon. S. L. Carpenter, Judge. </p>

<p>Cities and Towns — Illegal Incorporation — Elections—Contest.</p> <p>Where a town was not legally incorporated there was no municipality and an election for trustees was a nullity and there could he no contest of the election for trustees.</p>

<p>Practice — Appeals—Bills of Exception — Extension of Time for Tendering.</p> <p>The trial court has no authority at a subsequent term of court to enlarge the time fixed at. a former term for tendering a hill of exceptions although the order enlarging the time is entered upon notice and before the expiration of the time fixed at the former term for tendering the hill.</p>

A. II. De France, Judge. The complaint in this action alleges, among other things, that on the 28th day of January, 1899, the plaintiff was the owner in fee and entitled to the possession of certain mining property; and that he was also the owner and in possession of office furniture and a law library situate in the ITanchett Block in Idaho Springs'.

<p>Appellate Practice — Findings—Evidence.</p> <p>The findings of the trial court upon conflicting evidence ■where there is evidence to support them are conclusive on the appellate court.</p>

<p>1. Mechanics’ Liens — Foreclosure—Final Decree — Appeal.</p> <p>A decree foreclosing a mechanic's lien against property without a personal judgment against the owner is a final judgment affecting the property and the owner is entitled to have it reviewed either upon appeal or writ of 'error.</p> <p>2. Mechanics’ Liens — Foreclosure—Appeal—Liability on Appeal Bond.</p> <p>Where a judgment foreclosing a mechanic’s lien but which was not a personal judgment against the owner of the property was taken by writ of error to the court of appeals by the owner where the judgment was affirmed from which judgment of the court of appeals an appeal was taken by said owner to the supreme court where the appeal was dismissed, the said owner and the sureties on his appeal bond were not liable to an action on said bond for the amount of the claim for which the lien was foreclosed.</p> <p>3. Appeal Bonds — Liability of Obligors.</p> <p>The fact that an appeal bond by the owner of property against which a mechanic’s lien was foreclosed was conditioned that the principal should pay and satisfy the judgment did not estop the obligors of the bond to deny their liability for the amount of the claim for which the lien was foreclosed.</p> <p>4. Same — Pleading.</p> <p>In an action on an appeal bond from a judgment foreclosing a mechanic’s lien which was not a personal judgment against the owner who was appellant and principal in the bond, where the appeal was dismissed a complaint which does not allege that the costs of the appeal were unpaid nor that plaintiff suffered any damages by reason of the appeal will not support a judgment on the pleadings.</p>

Louis W. Cunningham, Judge. On December 20, 1900, the appellee was in the employ of the appellant as a fireman, and on the evening of that day was in that capacity on an engine pulling a freight train' consisting of 16 loaded and 12 empty cars which left Cumbres station and began the descent of the western. slope of the San Juan range in southwestern Colorado.

<p>1. Offices and Officer's — Resignation — Lieutenant Governor — President Pro Tem. of Senate.</p> <p>Where the governor resigned His office during the session of the legislature and the powers and duties of the office thereby devolved upon the lieutenant governor for the balance of the term, the president pro tempore of the senate did not become lieutenant governor de jure, but he became entitled to perform the duties and receive the emoluments of lieutenant governor only so long as he was president pro tem. of the senate, and where at the end of the session of the legislature the senate elected another president pro tem., the former president pro tem. no longer had a right to perform the duties and receive the emoluments of lieutenant governor, but such duties .and emoluments devolved upon his successor.</p> <p>2. Same — Estoppel.</p> <p>Where, during the session of the legislature, the governor resigned and the duties of his office devolved upon the lieutenant governor, and the duties and 'emoluments of the office of lieutenant governor devolved upon the president pro tem. of the senate, and at the end of the session the senate elected another president pro tem., the fact that such succeeding president pro tem. by his acts recognized his predecessor as lieutenant governor could not make such predecessor lieutenant governor de jure nor estop the succeeding president pro tem. from asserting his right to perform the duties and receive the emoluments of lieutenant governor.</p>

<p>Taxes — Collection—Action for Debt.</p> <p>An action for debt cannot be maintained by the county treasurer to recover taxes levied upon personal property where at the time of commencing the action sufficient, of the property upon which the tax was levied remained in the county and could have been identified, from which the taxes could have been collected by distress, although the property had been sold and had passed out of the possession of the parties against whom the taxes were levied.</p>

F. T. Johnson, Judge. Petition for a writ of mandamus. The fifth general assembly (Session Laws 1885, p. 328) passed an act empowering the governor to appoint and in pursuance thereof the governor did appoint the appellee Bennet state agent for the state of Colorado, whose duty thereunder it became to prosecute to final decision all disputed claims of this state against the government of the United States for all school lands which were due or thereafter to become due to the…

Ben B. Lindsey, Judge. This is a controversy over the ownership of a one-half interest in lot 18 in block 1 in Titus’ addition to the city of Denver. Both plaintiffs and defendant claim under the third item of the will of Ellen Platt, deceased, which is reproduced as it was written and punctuated: “I give and devise to my husband.

R. D. McLeod, Judge. Action on promissory note. The complaint reads: ‘ ‘ Plaintiff complains of defendant and for cause of action alleges: “First. That the amount involved in this action does not exceed the sum of two thousand dollars ($2,000). “Second.

Albert S. Frost, Judge. The appellee, Williams, plaintiff below, by a written lease signed by him as the owner let to appellant Houck, defendant below, a store building in Cripple Creek for the term of two years beginning January 1, 1899, and ending December 31, 1900. Before the- expiration of the lease the lessor notified the lessee to vacate at the end of the term and deliver possession to him. Lessee refused to do this; hence this action in unlawful detainer.

<p>1. Constitutional Limitation — Amendment—Exemption of Territory from Provisions of Constitution — Municipal Matters.</p> <p>The people cannot by amendment to the constitution free any portion of the state from the operation of any part of tbe constitution, nor vest in the citizens of any portion of the state power to legislate upon matters other than those purely local and municipal.</p> <p>2. Same — City and County of Denver — Authority of Charter Convention.</p> <p>Under article XX of the constitution the charter convention of the city and county of Denver in its authority to legislate is limited to matters purely local and municipal in their character. It has no authority to legislate upon any subject whatever in contravention of any provision of the constitution relative to governmental or state matters or to county or state offices and officers.</p> <p>3. Same' — County Judges.</p> <p>The provisions of the charter of the city and county of Denver, adopted March 29, 1904, increasing the number of judges of the county court to two and changing the time of election of such judges are invalid and inoperative, and one elected to fill the additional office provided for by said charter is not entitled to hold and exercise the office of county judge of the city and county of Denver.</p>

<p>City and County of Denver — Charter—Elections—Assessor.</p> <p>For the reasons stated in the opinion in The People ex rel. V. Johnson, ante, p. 143, it is held that the charter convention of the city and county of Denver had no authority to change the time of election, term of office and time when the term of office should commence of the county 'assessor of the city and county of Denver.</p>

<p>Opinion Followed.</p> <p>This -cause is affirmed on the opinion in The People ex rel. The Attorney General v. Johnson, ante, p. 143.</p>

<p>Opinion Followed.</p> <p>This cause is reversed and judgment rendered for relator for the reasons stated in the opinion in The People ex rel. v. Johnson, ante, p. 143.</p>

<p>Opinion Followed.</p> <p>For the reasons given in the opinion in The People ex rel. v. Johnson, ante, p. 143, the judgment in this cause is reversed and judgment rendered for relators.</p>

<p>Opinion Followed.</p> <p>For the reasons stated in the opinion in The People ex rel. v. Johnson, ante, p. 143, the judgment in this cause is reversed and judgment rendered for relators.</p>

<p>1. Pleading — Demurrer—Parties.</p> <p>The objection that there is a misjoinder of parties defendant cannot be raised by a joint demurrer by ail the defendants.</p> <p>2. Same — Offices and Officers — Quo Warranto.</p> <p>One action was properly brought by the three persons claiming to be the lawfully elected county commissioners of the city and county of Denver against the seven supervisors of said city and county, who were designated by the charter of said city and county to perform the duties of county commissioners, to oust them from said office of county commissioner,</p> <p>3. Opinion Followed.</p> <p>Following the opinion in The People ex rel. v. Johnson, ante, p. 143, the judgment in this cause is reversed and judgment rendered for relators.</p>

<p>Opinion Followed.</p> <p>For the reasons stated in the opinion in The People ex rel. v. Johnson, ante, p. 143, the judgment herein is reversed and judgment rendered for relator.</p>

A. H. De France, Judge. Upon the 7th day of September, 1899, appellant, who was defendant below, operated and maintained a railroad and switch yard at Black Hawk, in the county of Gilpin, in this state.

P. L. Palmer, Judge. The complaint in this action alleges that The W. D. Smith Cycle Company was a corporation capitalized with five hundred thousand dollars, represented by five hundred thousand shares of the par value of one dollar each; that in 1899 the corporation was declared bankrupt and plaintiff was appointed trustee in bankruptcy; that he duly sold all of the property of the bankrupt corporation except the claims against the stockholders for the amounts unpaid on…

<p>Opinion Followed.</p> <p>This cause is affirmed on the opinion in Felker v. Sullivan, ante, p. 212.</p>

<p>1. Cities and Towns — Ordinance:—Injunction.</p> <p>An injunction will not lie in favor of the proprietors of a restaurant to restrain the fire and police board and chief of police of a city from interfering with or prohibiting said proprietors from selling and serving liquors in their restaurant on Sundays, on the ground that the ordinances of the city under which said city authorities sought to prohibit such sales did not apply to restaurants.</p> <p>2. Opinion Followed.</p> <p>This cause is decided on the opinion in the case of The City of Denver v. Beede, 25 Colo. 172.</p>

<p>1. Innkeepers — Liability for Loss of Property — Pleading.</p> <p>The first requisite of the extraordinary liability imposed upon an innkeeper for property lost or injured is that the relation of innkeeper and guest should have existed between the parties at the time or shortly preceding the time the loss or injury occurred. After the relation of innkeeper and guest ceases the guest has a reasonable time within which to remove his property from the hotel, and thereafter the innkeeper is liable only as a bailee, in the absence of an express contract to the contrary. In order to hold defendant to the extraordinary liability of an innkeeper the complaint should allege the existence of the relation of innkeeper and guest at the time, or within a reasonable time, of the loss.</p> <p>2. Same — Partnership.</p> <p>Where two persons are conducting a hotel as copartners, the receipt of a deposit by one of the partners from a guest is within the scope of his authority as a member of the firm, and imposes a liability upon the firm and the members thereof to return the deposit upon demand regardless of whether or not the relation of innkeeper and guest exists at the time of such demand.</p> <p>3. Same — Pleading.</p> <p>Where plaintiff, a guest of a hotel, deposited money with a member of the copartnership firm conducting the hotel, and thereafter became an employee of the firm and servant in the hotel before the loss of said money by the absconding of the member of the copartnership with whom the money was deposited, the copartnership and the member not absconding were liable to plaintiff, and it was not necessary to allege or prove that plaintiff was a guest of the hotel at the time of the loss by the embezzlement of the absconding m'ember.</p> <p>4. Same — Instructions.</p> <p>In an action against a copartnership firm who were conducting a hotel, to recover money deposited by plaintiff while a guest of the hotel with a member of the firm who afterwards absconded taking with him plaintiff’s money, an instruction that such copartnership was a nontrading copartnership and that the rule that one copartner in a general partnership is bound by the acts of his copartner while acting within the scope of the partnership business did not apply to the case was properly refused.</p>

<p>Negligence — Assumption of Risk — Mines and Mining.</p> <p>Plaintiff, an experienced miner and machine-drill expert, was employed in driving a tunnel at water level in defendants’ mine. A former shift notified plaintiff that they had left two unexploded or missed shots. The employee who removed the debris shoved it back about four feet from the breast of the tunnel, but neglected to place under the debris a platform so that the water could escape', by reason of which, when plaintiff went to work, he found about eight inches of dirty, black water covering the floor of the tunnel between the. breast of the tunnel and the debris. He searched for the missed shots and found one but failed to find the other because it was under the water and concealed. He proceeded to work at drilling, struck and exploded the mi'ssed shot and was injured thereby.- Held that plaintiff’s means of knowing the unsafe condition of his working place was equal with defendants’ means of knowledge and that he assumed the risk and is not entitled to recover of defendants for the injury.</p>

<p>1. Pleading — Statutes—Sheriffs—Refusal to Permit Prisoner to Consult Counsel.</p> <p>Section 210, Mills’ Ann. Stats., making it the duty of sheriffs and other officers having any person in custody to permit any practicing attorney at law, whom such person may desire, to consult such person in private, and providing’ a penalty to be recovered in an action by the person aggrieved against the sheriff for violating said statute, is a general statute, and in an action against a sheriff for refusing to permit counsel to consult a prisoner it is not necessary to specifically declare upon the statute, but a complaint which states the facts is sufficient.</p> <p>2. Pleading — Indefiniteness Cured by Answer.</p> <p>An objection, to a complaint that a necessary allegation was not stated with sufficient definiteness was properly overruled whpre the answer supplied the defect.</p>

<p>Appeal from the District Court of Phillips County: Hon. E. E. Armour,' Judge.</p>

<p>1. Partnership — Evidence—Mortgages—Consideration.</p> <p>In an action to foreclose a mortgage the evidence examined and held not to show the existence of a- copartnership between the mortgagor and mortgagee at the time of the execution of the mortgage to show that the consideration for the'mortgage was provided by the mortgagor and not by a copartnership consisting of the mortgagor and mortgagee.</p> <p>2. Partnership — Evidence.</p> <p>The existence of a partnership cannot be proved by a statement in the testimony of one of the alleged partners, who is affirming the existence of the partnership, that such partnership did exist. He is competent only to state the facts, from which the law will determine whether or not such partnership existed.</p> <p>3. Mortgages — Partnership.</p> <p>Appellant advanced to appellee money to improve land filed on by appellee and took a mortgage thereon to secure the advancement. On the same day the mortgage was .executed appellant transferred to appellee an undivided one-half interest in certain personal property employed in the live stock and ranch business and thereafter a partnership in such business existed between appellant and appellee for about a year and a half, when it was dissolved and a mutual release executed as to all partnership matters, but without mentioning the mortgage. Held that the partnership dissolution and release did not discharge the obligation created by the mortgage.</p>

Samuel L. Carpenter, Judge. This is a direct proceeding in the nature of quo tcarranto against the respondent company, prosecuted by the people at the instance of the district attorney and the -attorney general of the state and having for its object the forfeiture of respondent’s corporate franchises for its failure to pay the annual state corporation license tax which the briefs designate “a flat tax.” The findings were against respondent and the decree declared forfeited…

<p>1. Tax Sales — Purchase by County — Assignment by County Clerk.</p> <p>The county clerk has no authority, after the- expiration of three years from date of a tax sale, to assign a certificate of purchase of land sold for delinquent taxes and bid in by the treasurer for the county.</p> <p>2. Tax Sales — Purchase by County — Assignment of Certificate —Subsequent Taxes.</p> <p>Where land is sold for delinquent taxes and bid in for the county neither the county clerk nor treasurer has authority to assign the certificate of purchase until the assignee has paid the subsequent taxes on the land or such sum as the board of county commissioners may have fixed.'</p> <p>3. Tax Deeds — Recitals—Subsequent Taxes.</p> <p>Before a tax deed to the assignee of a certificate of purchase of land sold for delinquent taxes and bid in for the county is operative there must be a recital in the deed or other proper proof that such assignee has paid the subsequent taxes.</p> <p>4. Same — Evidence.</p> <p>In the absence of a recital in a tax deed that the subsequent taxes were paid the deed is not even prima facie evidence that they were paid.</p>

<p>1. Conveyances — Notice—Partnership.</p> <p>Where at the time of executing a conveyance of land the title stood on the records in the name of the grantor, and the grantee had no knowledge that any other person than the grant- or had any interest in the land, the fact that it belonged to a non-trading partnership of which the grantor was a member and that the conveyance was made by the grantor in his own name without any authority from other members of the partnership would not affect the title of the grantee.</p> <p>2. Conveyances — Rescission—Quieting Title.</p> <p>In an action to rescind a contract of sale of land a decree in favor of defendant upon his cross-complaint to guiet title will not be disturbed on the ground that defendant had not seasonably performed the conditions of the contract of sale by paying the balance of the purchase price, where the decree amply protected the plaintiffs’ rights by providing that before title should be quieted the defendant should pay into court for the benefit of plaintiffs the balance of the purchase pirice, the payment of which had been postponed to a date subsequent to the time specified in the contract, and where the evidence tends to show that plaintiffs had by their conduct waived strict compliance by defendant with its terms as to time.</p> <p>3. Evidence — Harmless Error.</p> <p>The refusal to permit witnesses at one time to testify as to certain conversations was not prejudicial where the witnesses were subsequently during their examination permitted to -detail such conversations.</p> <p>4. Conveyances — Partnership—Evidence—Deciaraiions.</p> <p>In an action by plaintiffs, suing as heirs and personal representatives, to rescind a contract of sale of land on the ground that the land was partnership property and that the grantor, a member of the partnership, was not authorized by the other members of the partnership to convey the land, a refusal to permit plaintiffs to testify as to conversations had by them with individual members of the partnership with respect to the ownership of the land at the time the contract was executed, was not erroneous where at the time said contract was executed the record title to the land stood in the individual name of the grantor and defendant had no knowledge that the land was partnership property.</p> <p>5. Evidence — Declarations of Deceased Persons.</p> <p>Where plaintiffs suing as heirs and personal representatives testified as to certain conversations between their deceased and defendant it was not error to permit defendant to testify to the same conversations.</p>

<p>1. Evidence — Admitted Fact — 'Harmless Error.</p> <p>Permitting plaintiff to testify to a fact which was admitted by defendant, if error, was harmless.</p> <p>2. Evidence — Order of Proof.</p> <p>Where plaintiff sued on a promissory note and defendant answered that he had paid a joint note of plaintiff and defendant, which he claimed as a set-off, and plaintiff replied averring a settlement in full between the parties, including the joint note, and that on settlement it was deterandned and agreed that the amount due plaintiff from defendant was the same as the sum named in the note sued on, and defendant testified in his own behalf that plaintiff had in no way paid any part of the joint note claimed as a set-off, it was not improper for plaintiff’s counsel on cross-examination to ask defendant if it was • not included in the settlement averred in plaintiff’s replication.</p>

F. T. Johnson, Judge. Action for damages for personal injury wliich. plaintiff sustained by the falling of a stand alleged to have been negligently erected by defendant. The material issue of negligence being traversed, trial to a jury resulted in judgment for the plaintiff. Defendant appeals. At the time of the accident the defendant city existed under a special charter granted.by the general assembly.

<p> Appeal from the District Court of Arapahoe County: Hon. P. L. Palmer, Judge. </p>

<p>1. Pleading — Misjoinder of Causes of Action — Quieting Title— Contracts.</p> <p>An action to quiet title to certain land cannot be properly-joined in the 'same complaint with an action for a money judgment for breach of contract, by defendant to purchase the land.</p> <p>2. Practice — Tender—Acceptance.</p> <p>Where plaintiff failed to accept a tender made by defendant under section 281 of the code and to give notice thereof as required, the tender must be considered as withdrawn and plaintiff is not entitled to a judgment therefor.</p> <p>3. Tax Sales — Tender—Quieting Title.</p> <p>, Where the defendant in an action to quiet title, before the commencement of the suit, tendered plaintiff a certain sum of money which purported to be the amount of taxes, penalty and cost necessary to redeem the land in controversy from an illegal tax sale, conditioned upon plaintiff’s relinquishment of all of his title thereto to defendant, which tender was refused by plaintiff, plaintiff was not entitled to a money judgment for the amount tendered in his action to quiet title.</p> <p>4. Appellate Practice — Abstracts—Briefs—Rules of Court.</p> <p>A judgment may be affirmed upon appellant’s failure to comply with the rules for preparing abstracts and printing briefs.</p>

<p>1. Water Rights — Wrongful Diversion — Injunction.</p> <p>In an action by a prior appropriator of water to enjoin- a subsequent appropriator from wrongfully diverting water from the stream it is no defense to the action to show that there are enough priorities ahead of plaintiff’s to exhaust the entire water of the stream even if the water diverted by defendant be permitted to flow therein.</p> <p>2. Water Rights — Adverse User — Prescriptive Right.</p> <p>To establish a prescriptive right to the use of water by adverse possession and user for twenty years, the- adverse user ’ by which the right is sought to be established must have been such as to notify the person against whom it is asserted that his water was being taken and used adversely, and he must have acquiesced in such adverse user and made no claim to it during the period.</p> <p>3. Water Rights — Color of Title — Adverse User.</p> <p>To support a claim of right to the use of water by adverse and exclusive possession and use and payment of taxes for the period of seven years under color of title, the color of title must be based upon a paper title conveying the water rights. Color of title to the use of water from springs based upon a patent to the land including the springs cannot avail against one who has a decree awarding him the right to the use of the water under a prior appropriation.</p> <p>4. Water Rights — Springs—Seepage.</p> <p>Where one of the sources of the water of a creek is a spring, the fact that the volume of the water of the spring has been increased' by seepage from irrigated lands above does not entitle the owner of the land including the spring to divert the water of the spring to the injury of prior appropriators of water from the creek.</p> <p>5. Same.</p> <p>The- law of 1889 (Session Laws 1889, page 215) relative to appropriation of seepage and spring water is not applicable to the water of a spring which constitutes the source of one of the branches of a natural stream the water of which had been appropriated prior to the enactment of the law.</p>

<p>Certiorari — Refusal of Court of Appeals to Follow Opinion of ‘ Supreme Court.</p> <p>Where the supreme court held that petitions for writ of mandamus were sufficient and reversed the judgment of the lower court dismissing such petitions for insufficiency, and remanded the causes for trial and after trial and judgments in favor of the petitioner appeals were taken to- the court of appeals, where it was held that mandamus could not be sustained on the cases made in the lower court, if the decision of the court of appeals was wrong it was error committed in construing the facts and pleading and not a refusal of that court to be governed by the previous decision of the supreme court, and the action of the court of appeals cannot be • reviewed by the supreme court on certiorari.</p>

<p>1. Municipal Corporations — Powers—Mode of Exercising.</p> <p>Where, the mode in which a municipal, corporation may exercise a power is prescribed by statute that mode must be followed.</p> <p>2. Cities and Towns — City Council — Resolution—Pleading.</p> <p>In an action against a city a complaint which alleges that a resolution of the city council authorizing the city attorney to enter into the agreement sued on was unanimously adopted and that at the time a quorum was present and all the proceedings were adopted by a unanimous vote aye, is sufficient to admit proof of the mode of the adoption of the resolution.</p> <p>3. Same — Presentation to and Approval by Mayor.</p> <p>In an action against a city an allegation in the complaint that a resolution of the city council authorizing the city attorney to enter into the agreement sued on was approved and signed by the mayor is not sufficient to admit proof that the resolution was presented to the mayor within forty-eight hours after its adoption by the city council.</p> <p>4. Same.</p> <p>In an action against a city upon a stipulation or agreement made and entered into by the city attorney for the city an allegation in the complaint that the stipulation and agreement was presented to the mayor for his approval and signature and that the mayor did not disapprove or return said stipulation to the city council at its next regular meeting or at all and made no objection to said stipulation, was a sufficient allegation to admit proof as to the presentation of the resolution or stipulation to the mayor and his action or nonaction thereon.</p>

<p>1. Appellate Practice — Record—Bill of Exceptions — Dismissal.</p> <p>Where a case is presented in the supreme court upon the record proper the absence of a bill of exceptions and the fact that no exception was saved to the findings and decree of the lower court is not grounds for dismissing the writ of error, but the case will be reviewed upon the record proper.</p> <p>2. Divorce and Alimony — Separate Maintenance — Practice.</p> <p>In an action for divorce where the complaint shows that the primary object was to secure an absolute divorce, and alimony was a mere incident to the divorce, and the court found that by reason of the misconduct of both parties, neither was entitled to a divorce and dismissed the complaint so far as it sought a divorce, it was error to decree alimony and separate maintenance to plaintiff, but the action should have been dismissed.</p>

<p>1. Appellate Practice — Jurisdiction—Quo Warranto,</p> <p>The supreme court has not jurisdiction to review, on appeal, a judgment for defendant in an action of quo warranto to oust defendant from an office, but has jurisdiction to. review such judgment by writ of error, and where such judgment was brought to the supreme court on appeal the appeal will be dismissed and the cause entered as pending on writ of error.</p> <p>2. City and County of Denver — Offices and Officers — Constitutional Law.</p> <p>The charter convention of the city and county of Denver provided for by article XX of the constitution had no power to change the time of election, term of office and time when the term of office shall commence, of county officers.</p> <p>3. Quo Warranto — Election Contest — Pleading.</p> <p>A proceeding in quo warranto to oust a party from an office cannot be converted into a statutory election contest, and a demurrer to an answer which attempts to mate such conversion should be sustained.</p>

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

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

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

<p>Executions — Wrongful Levy — Damages—Demand.</p> <p>Where plaintiffs’ property was levied upon and taken from their possession under an execution against another party, the taking was tortious and constituted a conversion, and a demand for possession of said property was not necessary before commencing an action against the sheriff for damage for such wrongful taking and conversion.</p>

<p>Appeal from the District Court of Logan County: Ron. E. E. Armour, Judge.</p>

<p> Error to the District Court of Teller County: Hon. William P. Seeds, Judge. </p>

Louis W. Cunningham, Judge. This action was brought by the appellee (plaintiff below) against the appellant (defendant below) to enforce the specific performance by appellant of a certain agreement entered into by the grantors of the respective parties. The case was tried upon the following agreed statement of facts: “First.

<p>1. Contracts — Consideration.</p> <p>A promise to do a thing which the promisor was legally bound to do, as a rule, is not a sufficient consideration to support a reciprocal undertaking by the promisee, but such promise may be enforced against the promisor notwithstanding its enforcement compels the performance of that which was already a legal obligation.</p> <p>2. Same — Custody of Child — Divorce.</p> <p>An agreement by a husband to pay to his wife a certain stipulated sum per week for the support of their child was not without consideration because a suit for divorce was pending between the parties at the time of the agreement in which the custody of the child was involved and in which the trial court had power and authority to make such disposition of the custody of the child as it saw fit.</p> <p>3. Contracts — Public Policy — Divorce.</p> <p>A contract between a husband and wife whereby the husband agreed to pay to the wife a stipulated 'sum per week for the support of their child is not contrary to public policy because at the time it was entered into a suit for divorce was pending between them, where the contract did not and was not intended to facilitate the granting of the. divorce.</p>

Samuel L. Carpenter, Judge. This is an action brought to recover certain sums of money alleged to be due defendant in error (plaintiff below) from plaintiff in error (defendant below) upon an agreement for the sale hy plaintiff to defendant of certain mining property, and for money alleged to be due for board and lodging furnished to the employees of defendant, and for goods, wares and merchandise sold to her, and work and labor performed at her request.

<p>1. Negligence' — Railroads—Speed of Train.</p> <p>The law places no restriction upon the rate of speed at which railroad trains may be run across the country outside of incorporated cities or towns which have prescribed a limit to such speed within such municipalities, and no rate of speed is per se negligence except where the law of the state, or municipal corporation authorized to do so, has prescribed a limit.</p> <p>2. Negligence — Railroads—Fencing Track — Instructions.</p> <p>In an action against a railroad company for damage for running over and killing a cow at a point three-quarters of a mile from a railroad station, and where the company had left the track unfenced for the convenience of shippers in approaching a side track for the purpose of loading grain, stock, etc., an instruction that negligence could not be predicated upon the failure of the railroad company to fence its track at the point where the cow was killed was correct.</p>

<p> Error to the District Court of Conejos County: Hon. John H. Voorhees, Judge. </p>

<p>Cities and Towns — Warrants — Special Fund — Actions — Mandamus.</p> <p>An action for a money judgment against a city upon city warrants drawn upon a special improvement fund to be created by an assessment upon abutting property for work done in constructing a sidewalk cannot be maintained unless it be alleged and shown that the city cannot make a valid assessment upon the abutting property or has negligently failed to make 'such assessment. The proper remedy is by mandamus to compel the assessment and levy of the special tax.</p>

<p>1. Cities and Towns — Bonds—Elections.</p> <p>Where the question submitted to ' and voted upon by the ' electors of a city was, Shall the city issue bonds maturing in not less than fifteen nor more than thirty years, payable in equal annual installments? an ordinance authorizing the issuance of bonds payable at the option of the city fifteen years after date and absolutely due and payable twenty-five years after date Was not responsive- to the question submitted to the electors and the bonds therein authorized were invalid.</p> <p>2. Cities and Towns — Bonds—Auditorium.</p> <p>It is within the power of the city and county of Denver to provide by charter for the erection of an auditorium, to purchase a site therefor and to issue bonds to discharge the indebtedness.</p> <p>3. Cities and Towns — Bonds—Maturity.</p> <p>City bonds maturing fifteen years after date and providing for the payment of one-fifteenth of the principal of the bond each year, or bonds maturing each year through the perio^l of fifteen years so that one-fifteenth of the entire debt will be extinguished each year, are responsive to the question submitted to and voted by the electors of the city — Shall the city issue bonds maturing in not less than fifteen nor more than thirty years payable in equal annual installments? — and are not in conflict with section 8, article XI, of the constitution.</p>

<p>1. Mining Claims — Cotenants—Failure to Contribute to Assessment — Forfeiture—Notice.</p> <p>A proceeding to forfeit the interest of a co-owner in a mining claim for failure to contribute his portion of the expenses for the required annual assessment work is ineffectual to divest such co-owner of his interest where his name does not appear in the affidavits and notice of forfeiture.</p> <p>2. Mining Claims — Cotenants—Patents—Trusts and Trustees.</p> <p>Where certain co-owners of a mining claim procured a patent to the entire claim in their names, excluding therefrom the name of another co-owner, they took title to the interest of the excluded co-owner in trust for him and became trustees for him to the extent of his interest.</p> <p>3. Mining Claims — Cotenants—Payment of Taxes.</p> <p>The payment of taxes on a mining claim by one or more co-owners is a payment for all the co-owners.</p> <p>4. Limitation — Payment of Taxes — Claim and Color of Title.</p> <p>To support a title by limitation under section 2923 or 2924, Mills’ Ann. Stats., it must be shown that the taxes have been paid for a period of five consecutive years by persons having or claiming the property under color of title. It is not sufficient if the taxes were paid any one of the five years by a person who at the time made no claim, to the property under color of title.</p> <p>5. Limitation — Trusts and Trustees — Cotenants — Breach of T rust — Notice.</p> <p>Where certain of the co-owners of a mining claim procured in their names a patent to the entire claim, excluding therefrom the name of another co-owner and afterwards denied the interest of such co-owner, an action by the excluded owner against the patentees for breach of their trust could be brought at any time within five years from the time the causer of action accrued, and the cause of action did not accrue until the trust was repudiated by said patentees and the knowledge of such repudiation was brought home to such excluded co-owner.</p> <p>6. Laches — Pleading—Practice.</p> <p>When laches is interposed as a defense to an action it should be raised by answer, and not by demurrer.</p>

<p>Opinion Followed.</p> <p>The judgment in this cause is reversed upon the opinion in the case of Ballard v. Golob et al., ante, p. 417.</p>

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

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

<p>1. Wills — Judgments—Setting Aside Void Judgment.</p> <p>If tlie judgment of tiie county court in admitting a will to probate was a nullity it was not error for the county court to set aside such judgment upon a petition filed more than six months after its rendition; neither was it error for the district court, on appeal from the action of the county court, to enter a similar decree setting aside the judgment probating the will.</p> <p>2. Same — Jurisdiction.</p> <p>Where the county court had jurisdiction of the parties and the subject-matter in a proceeding to probate a will, its judgment in admitting the will to probate was not void, and it was error to set aside such judgment upon a petition filed more than six months after its rendition, notwithstanding the judgment so set aside was erroneous and would have been reversed on appeal or error; and on appeal to the district court from the order of the county court setting aside the probate, it was also error for the district court to enter a judgment setting aside the judgment probating the will.</p> <p>3. Wills — Proceeding to Probate — Jurisdiction.</p> <p>The county court had jurisdiction of the subject-matter in a proceeding to probate a will, and where all the heirs at law entered their personal appearance and consented in writing that the instrument proposed should be admitted to probate as the last will of the deceased the court had jurisdiction of the parties.</p> <p>4. Same.</p> <p>In a proceeding to probate a will the county court has juris- " diction to determine the question as to whether or not the will was properly attested and an error committed in determining that question would be an error in the exercise of jurisdiction and not in assuming jurisdiction.</p> <p>5. Wills — Attesting Witnesses — Proceeding to Probate — Judgments.</p> <p>In a proceeding to probate a will where the court had jurisdiction of the parties and upon the written consent of the heirs at law a judgment was entered admitting the will to probate, in the absence of a showing of fraud in procuring the probate of the will it was error for the county court to set aside its judgment upon a petition filed more than six months after its entry, notwithstanding the will was attested by only one 'subscribing witness.</p>

<p>1. Pleading — Quieting Title — Executions—Parties.</p> <p>A complaint which alleges that plaintiff is the owner in feq and in possession of certain mining claims; that defendant, a judgment creditor of certain other parties, alleges them to be the owners of certain undivided interests in said mining claims, and has levied an execution upon and advertised for sale said pretended interests of said judgment debtors, and that if said sale is effected it will cast a cloud upon plaintiff’s title and injure him by impairing the market value of property, is sufficient to state' a cause' of action to. quiet title.</p> <p>2. Practico — Pleading—Injunction—Motion to Dissolve — Dismissal of Cause — Verified Answer.</p> <p>In an action to obtain a preliminary writ of injunction restraining a threatened sale under a writ of execution until final hearing of the cause, and at final hearing to cancel the alleged lien of the judgment and perpetually restrain the sale of plaintiff’s property thereunder, it was error. to dismiss the cause upon a motion to dissolve the temporary writ of injunction, although the answer was verified.</p>

<p>1. Damages — Exemplary and Actual — Judgments.</p> <p>Where actual damages are shown In an action it is not necessary that the amount or money value of such actual damages be found in order to sustain a judgment for exemplary damages.</p> <p>2. Exemplary Damages — Assault.</p> <p>In an action for damages where the evidence shows that plaintiff, a sick man, was arrested by defendants under a warrant and in so doing that they maliciously and unnecessarily subjected plaintiff to indignities, violence and mental and physical suffering, and in disobedience of the mandate of the warrant threw him in jail, in consequence of which treatment plaintiff was made so ill as to be confined to his bed for several days, the facts were sufficient to sustain a judgment for exemplary damages although there was no finding of the amount or money value of the actual damages.</p> <p>3. Unlawfully Carrying Concealed Weapon — Forfeiture of Weapon.</p> <p>Under section 1364, 3 Mills’ Ann. Stats., providing that, all concealed weapons taken from parties carrying the same in violation of the statute shall be forfeited to the county, it is not necessary that the party from whom such weapon is taken should be convicted of the crime of unlawfully carrying concealed weapons before such weapon becomes forfeited, but it becomes forfeited immediately upon being taken, and i.n an action by such, party against a sheriff to recover a pistol taken from him the sheriff may show in defense that the pistol at the time it was taken was being carried concealed upon plaintiff’s person in violation of the statute, although no criminal charge was preferred against plaintiff for unlawfullly carrying concealed weapons.</p>

<p>Negligence — Fellow Servant.</p> <p>Defendant tlirougli its proper servants was attempting to repair the feed pipe in its reduction works and had at hand sufficient means and appliances, if made use of, to support the pipe while,such repair work was being done. Plaintiff, an employee in said works, and who was familiar with the appliances and their condition, was directed by the foreman to assist in the repair work, and while- so assisting through the fault of 'some one or more of the employees engaged in such repair work a section of the pipe fell and injured plaintiff. Held, that the negligence, if any, causing plaintiff’s injury was the negligence of fellow servants, and defendant was not liable therefor.</p>

<p>Appellate Practice — Findings—Evidence.</p> <p>Where the findings of the trial court are supported by substantial evidence such findings are conclusive on the appellate court.</p>

<p>1. Judgments — Default—Appearance—Jurisdiction.</p> <p>Where the court had_ jurisdiction of the subject-matter, orders of the court reciting that defendant appeared by counsel and that his default was entered for failure to plead as required by rule prima« facie show that the court had jurisdiction of the person of the defendant and that a default was properly entered.</p> <p>2. Appellate Practice — Bill of Exceptions — Attachment—Motion to Quash — Notice.</p> <p>A motion to quash a writ of attachment and levy and to dismiss the cause not based upon or affecting a pleading in the cause is not a part of the record unless made so by bill of exceptions, and in the absence of a bill of exceptions the appellate court cannot consider an objection that such motion was heard and determined without due notice to defendant’s counsel.</p> <p>3. Appellate Practice — Bill of Exceptions — Order to Plead.</p> <p>Where the validity of an order requiring a defendant to plead within a certain time is not contradicted by the record proper, an objection to the validity of such order cannot be considered on appeal in the absence of a bill of exceptions containing impeaching evidence.</p> <p>4. Appellate Practice — Bill of Exceptions — Attachment—Motion to Quash.</p> <p>Rulings of the trial court upon a motion to quash a writ of attachment and certificate of levy, where such motion is not based on nor affects the pleadings, cannot be reviewed by the appellate court unless objections and exceptions to such rulings be preserved by bill of exceptions.</p> <p>5. Jurisdiction — Appearance—Recital of Record.</p> <p>A recital in the record that defendant by his attorney appeared in the action' is sufficient showing of appearance as against an objection that the court had no jurisdiction of the person because no service of process was had, unless such recital be shown to be false.</p> <p>6. Appearance — General and Special — Presumption.</p> <p>The presumption is that any appearance in a cause i's a general appearance, and merely because a defendant says he enters a special appearance does not make it such, but the nature of the appearance must be determined by the object the defendant has in view in making 'such appearance.</p> <p>7. Appearance — General and Special.</p> <p>A special appearance is one made for the purpose of urging jurisdictional objections only, and if a defendant separately or in conjunction with a motion going only to the jurisdiction invokes the power of the court on the merits or moves to dismiss the action or asks relief which presupposes that jurisdiction has attached, his appearance is general.</p> <p>8. Same — Attachment—Motion to Quash — Dismissal.</p> <p>A motion to quash a writ of attachment and certificate of levy on the ground of defective service which also asks that the cause be dismissed constitutes a general appearance.</p>

<p>1. Pleading — Divorce—Extreme and Repeated Acts of Cruelty.</p> <p>A complaint for divorce on the grounds of extreme and repeated acts of cruelty, which, alleges generally that defendant was guilty of extreme and repeated acts of cruelty, followed by allegations that a short time after marriage defendant developed a chronic habit of quarreling and fault-finding with plaintiff and continued the practice of nagging him about trivial things, which rendered his life miserable and destroyed his peace of mind, and rendered the marriage relation impossible to be endured, but which fails to allege* any specific acts of cruelty or to mention any time or place or attendant circumstance, is defective, and a motion to require the complaint to be made more certain in this respect should be granted, but it is sufficient as against an objection, at the beginning of the trial, to the introduction of any evidence thereunder.</p> <p>2. Same — Default.</p> <p>Where a complaint in an action for divorce alleged both extreme and repeated acts of cruelty and the answer denied the extreme cruelty, but did not deny the repeated acts of cruelty, judgment by default for failure to make this denial could not be entered, but trial must be had and proof of the charge made.</p> <p>3. Divorce — Evidence—Cruelty.</p> <p>In an action for divorce on the grounds of extreme and repeated acts of cruelty, evidence examined and held insufficient to support a decree of divorce.</p> <p>4. Appellate Practice — Action for Divorce — Verdict.</p> <p>In an action for divorce the verdict of the jury has the same weight and is entitled to the same consideration as the verdict in an ordinary civil action, but is not entitled to any greater consideration.</p>

<p>1. Water Rights — Appropriation—Prescription.</p> <p>Plaintiff constructed its canal across defendant’s land for the purpose of carrying water diverted from a natural stream for milling purposes. Upon defendant’s land were certain springs the water of which flowed into plaintiff’s canal, hut no active step's were taken to legally appropriate the water by plaintiff. Defendant acquiesced in the use of the water from the springs by plaintiff when ha did not need the water for his own use, hut continued to use the water under claim of ownership for domestic, irrigation and other purposes whenever he wished. Held that plaintiff had made no valid appropriation of the water of the springs and acquired no rights by prescription or adverse use whether the water was from natural springs and flowed into plaintiff’s canal through natural channels or was percolating water through defendant’s land gathered into artificial channels by defendant.</p> <p>2. Water Rights — Ditches—Right of Way — Easements.</p> <p>' Where plaintiff under 'section 48, chapter 18, of the Revised Statutes of. 1868, upon, a petition asking for the condemnation of a right of way for a ditch condemned a strip of land across defendant’s land upon which its ditch was constructed and which divided defendant’s land into two parcels, plaintiff acquired merely a right of way or easement in the strip of land, and defendant had a right of way across said condemned strip to conduct water from one part of his tract of land to the other, provided such right was exercised by defendant so as not in any way to interfere with the superior right or easement of plaintiff.</p>

<p>1. Attorney and Client — Fees—Contracts.</p> <p>Defendant employed a nonresident attorney at a stipulated fee to bring a certain suit and authorized said attorney to employ associate counsel with a stipulation that the fees of such associate counsel should be paid by the nonresident attorney. Said attorney employed plaintiffs without any agreement as to fees and without any knowledge on their part of the agreement between defendant and said nonresident attorney as to their compensation. After plaintiffs filed the 'suit the nonresident attorney was dropped from the case and defendant corresponded directly with plaintiffs, in which correspondence he informed plaintiffs that the nonresident attorney was out of the ease and urged them to attend to the suit and in one letter asked them what their fee would be. Plaintiffs did not fix their fee. but conducted the suit to a successful termination. Before the terinitiation of the suit defendant wrote plaintiffs that the nonresident attorney was again in the case, field that there was an implied promise on defendant’s part to pay plaintiffs .for their services and lie was liable to them for what such services were reasonably worth.</p> <p>2. Practice — Directing Verdict — Harmless Error,</p> <p>Where the facts in a case were such that the court should have directed a verdict for plaintiff as a matter of law, the defendant cannot complain of the action of the court in submitting the issue to the jury.</p>

<p> Appeal from the County Court of Las Animas County: Hon. John A. Lindsey, Judge. </p>