Volume 41 — Colorado Reports

<p> Error to the District Court of the City and County of Denver. </p> <p> Hon. F. T. Johnson, Judge. </p> <p>Action by Jemima Nicholson against The E. P. McGovern Undertaking Company, a corporation, A. B. Sullivan, Joseph Walsh, Catherine J. McGovern and E. P. McGovern. Prom a judgment in favor of defendants, plaintiff brings error.</p>

<p> Appeal from the District Court of Arapahoe County. </p> <p> Hon. Owen E. LeFevre, Judge. </p> <p>Action by The Colorado Fuel and Iron Company against The Eio Grande Southern Eailroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Brokers — Real Property — Commission — Purchaser Ready and Willing to Buy.</p> <p>An owner agreed to give a broker 10 per cent, commission for selling certain lands, the price and terms to be made by the former. The latter brought E. to the owner, but, upon being told the price, E. left tvithout offering to buy. The owner later sold to S. who, in turn, sold to E. Held that, in the absence of any showing of éollusion between the owner and S., the broker is not entitled to such commission, since he did not furnish a purchaser who was ready, able and willing to buy on the terms of the owner. — P. 11.</p>

<p>1. Master and Servant — Hirer of Vehicle and Driver for Use of Another — Negligence of Driver — Injury to Third Person— Liability — Damages.</p> <p>Where a person hires of another a vehicle and driver to be used in carrying third persons to and from certain points, and exercises no control whatever over the driver, further than to tell him in a general way to carry the occupants, the owner, and not the hirer, is liable in damages for injuries which result to such occupants as the result of the driver’s negligence. — P. 15.</p> <p>2. Same.</p> <p>An undertaking company hired a carriage and driver from a livery stable to carry those attending a funeral to the cemetery and back to their respective residences. On returning, as the plaintiff was about to alight from the carriage, the driver suddenly started the horses and threw her to the ground, causing injuries for which an action was brought against the livery stable owner. Held, that the latter, and not the undertaking company, is liable for the injuries sustained. — P. 15.</p>

Appeal from the District Court of the City and County of Denver. Hon. Booth M. Malone, Judge. Action for an injunction by Carrie F, Brereton against Mitchell Benedict. From a judgment for defendant, plaintiff appeals.

<p>1. Customs and Usages — Nature—Requisites.</p> <p>A custom or usage, relating to a particular business, to be Available for the purpose of determining the rights of parties, must be uniform, notorious and reasonable. — P. 22.</p> <p>2. Same — Evidence—Sufficiency.</p> <p>In an action by a hack driver to recover a commission from defendant on a sale of goods made to a customer brought to the latter’s store by plaintiff, evidence that dealers in like goods as defendant had been in the habit of paying ten per cent, commission to hackdrivers bringing them tourist purchasers, that such sales were usually small and not exceeding $75, excepting in one or two instances where they were $200, and that, when in excess of the latter sum and usually the former, the commission depended upon special contract, is insufficient to establish a custom to pay ten per cent, commission on a sale of approximately $4,500. — P. 22.</p> <p>3. Same — Practice in Civil Actions — Contracts—Custom—Evidence — Presumptions.</p> <p>Evidence of custom may be resorted to for the purpose of ascertaining the meaning and interest of parties to a contract, where the terms employed are general in their nature, since experience has taught that men of affairs, in making contracts, are not always careful to express themselves with completeness and particularity, and that, in dealing with one another, they leave part of their intention unexpressed, in silent reliance on the usages, mutually understood, to enter into and form a part of this agreement; and hence, when such a contract becomes the subject of litigation, the presumption is indulged, if the parties have not expressed a contrary* intention, that they intended to incorporate therein a usage known to them, and evidence of such fact is admissible, not to vary or contradict tbe terms of tbe contract, but to interpret it as understood by tbe parties at tbe time it was made. — P. 23.</p>

Hon. Theron Stevens, Judge. Action to quiet title by Thomas L. Beam against W. O’Sullivan Dimpfel. From a judgment for plaintiff, defendant appeals. This is an action for appellee, as plaintiff, to remove a cloud from the title to the Bourbon County lode mining claim, situate in Hinsdale county, Colorado, he claiming title thereto through and by virtue of a certain tax deed.

Hon. Booth M. Malone, Judge. Mandamus by J. Fitz Brind against The Butterfly-Terrible Gold Mining Company and Calvin Bullock, as president, and Francis J. Hobbs, as secretary and treasurer, of said company. From a judgment making the alternative writ permanent, respondents appeal.

<p> Appeal from the County Court of Arapahoe County. </p> <p>Hon. Stephem R. Pratt, Judge. -</p> <p>Elmer Olmstead was convicted of violating a building ordinance, and appeals.</p>

Appeal from the District Court of Fremont County. Hon. M. S. Bailey, Judge. Action by A. L. Kellogg, as trustee of the estate of Daniel Knapp, bankrupt, against H. S. Andrews. From a judgment for plaintiff, defendant appeals.

<p>1. Marriage — Common-law Marriage — Consent—Solemnization.</p> <p>Marriage is declared to be a civil contract by the Colorado statutes, and, therefore, a marriage contract between parties capable of contracting, possessing clearly the one essential prerequisite of mutual consent, followed by cohabitation as husband and wife, and such other attendant circumstances as are necessary to constitute the common-law marriage, may be valid and binding although no solemnization as provided by statute may have been attempted. — P. 45.</p> <p>2. Same — Proof.</p> <p>Where a common-law marriage is denied, its existence may be proved and presumed from evidence of cohabitation as husband and wife and from general repute. — P. 46.</p> <p>3. Same — Cohabitation.-</p> <p>Cohabitation necessary to establish a common-law marriage must consist of a living or dwelling together in the same habitation as husband and wife, and not merely a sojourning or a habit of visiting or remaining together for a time with sexual intercourse. — P. 46.</p> <p>4. Same — General Repute.</p> <p>General repute as to the marital relation, to establish common-law marriage, means the understanding among neighbors and acquaintances with whom the parties associate in their daily life, that they are living together as husband and wife, and not in meretricious intercourse; it is more than mere hearsay; it involves and is made up of social conduct and recognition of an admitted and unconcealed cohabitation; and it is necessary that there be evidence of both cohabitation and reputation before such a 'marriage can be presumed, as proof of one alone is not sufficient to sustain the presumption. — P. 46.</p> <p>5. Same — Evidence—Cohabitation—Presumption.</p> <p>Cohabitation, attended by other facts, is merely a circumstance from which a marriage in fact may be presumed, so that, where facts are proved from which a contrary presumption arises, all former evidence.falls or is neutralized; and one of the essential obligations of a valid marriage contract is that it binds the parties to keep themselves separate and apart from all others and cleave to each other during their joint lives. — P. 47.</p> <p>6. Same — Evidence—Instructions.</p> <p>Where intestate had lived in a meretricious relation with petitioner prior to the death of his wife, 'and thereafter was not constant in his attendance on petitioner, but simultaneously cohabited with a third person under like repute, the presumption is that the meretricious relation with petitioner continued, and that there was no agreement to marry, followed by cohabitation, sufficient to establish a common-law marriage, since there could not be two common-law wives existing at the same time; and the court erred under such facts in instructing that “slight circumstances may be sufficient to establish a change from an illicit to a legal relation, and the proof of its time and place is not indispensable.” — P. 47.</p> <p>7. Same.</p> <p>Where the issue is in regard to the existence of a common-law marriage, and the evidence shows that the intercourse between the parties at its inception was not only meretricious but intentionally criminal, the continuance of like intercourse must be presumed until the contrary is shown; and, where it is sought to establish the presumption of marriage by cohabitation and repute, the marriage contract must be established by convincing and positive evidence. — P. 48.</p> <p>8. Same — Instructions.</p> <p>On an issue as to the validity of a common-law. marriage, a request to charge that, if it was proven that intestate was cohabiting with a third person under like repute, the presumed innocence of either cohabitation with such person or petitioner must fail for the reason that it is impossible for two marriages to exist together, -was improperly refused.- — P. 49.</p> <p>9. Same.</p> <p>On an issue as to the validity of a common-law marriage, while the evidence showing that the deceased had lived in a meretricious relation with petitioner prior to the death of his wife, and that they cohabited for about eight years thereafter without taking any steps to have the statutory ceremony performed, and that the deceased cohabited with a second party during the same period, and by equally competent and undisputed evidence was reputed to be married to her, may not be conclusive proof, it is certainly the strongest kind of evidence to show that deceased at least had no intention to live in a matrimonial union with petitioner. — P. 51.</p> <p>10. Appellate Practice — Verdict—Conclusiveness.</p> <p>Where, on an issue as to the validity of a common-law marriage, the evidence was not conflicting, and was insufficient to meet the requirements of the law to support a contract of marriage, a verdict finding a valid marriage is not binding on the appellate court. — P. 51.</p>

Appeal from the District Court of Weld County. Hon. Christian A. Bennett, Judge. Action by William E. Day against Joseph A. Israel, United States marshal for the state of Colorado. From a judgment for plaintiff, defendant appeals.

Hon. Ben. B. Lindsey, Judge. Action for unlawful detainer,, by Mary A. Gill against Frank P. Bonnell. From a judgment for plaintiff in the justice and in the county courts, defendant appeals. This is an action for unlawful detainer commenced before a justice of the peace to recover possession of certain premises under section 3, page 224, Session Laws of 1885,.which provides: “Sec. 3.

<p> Appeal from the County Court of the City and County of Denver. </p> <p> Hon. Albert S. Frost, Judge. </p> <p>Action by The Plattner Implement Company against John S. Young and Fred Hays. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Execution — Property Subject to Levy.</p> <p>The interest of one in personal property, to be subject to levy under execution, must be a vested interest at the time o£ the levy. — P. 70.</p> <p>2. Same.</p> <p>An owner delivered sheep to J. and G. as lessees in a lease binding them to return the sheep received to the owner at the expiration of the lease, together with a half of the increase. A year thereafter G. retired, and F. became a lessee with J., and a memorandum signed at that time by the parties recited that J. should bear the loss and receive the gain during the year last past. The facts in this case show that the judgment debtor’s interest in the property levied upon was not a fixed and determined one, and, therefore, was not subject to levy. — P. 71.</p> <p>3. Replevin — Evidence—Admissibility.</p> <p>A lessee of sheep agreed to return them at the expiration of the term, together with half of the increase. Held that, in replevin by the lessor against the sheriff who had levied on the sheep as the property of the lessee, evidence was admissible that during the term the interest of the lessee was agreed upon, for the purpose of showing that certain sheep were set off to the lessee under the lease and thereby became subject to levy. — P. 71.</p>

<p>1. Appellate Practice — Equity Proceedings — Aid of Jury — Alleged Misconduct — Harmless Error.</p> <p>In an action to cancel a deed on the ground of forgery, and its record, the court submitted to a jury the question of whether the plaintiff signed the deed, and its finding was in the negative. Held, that it is a sufficient answer to complaints of various rulings on the evidence, misconduct of the jury, and failure to submit interrogatories, that the court, although calling to its aid the jury, was not bound by its findings, and, in addition, that the court not only approved the jury’s findings, but also made one of its own that plaintiff’s name was a forgery. — P. 74.</p> <p>2. Appellate Practice — Evidence—Sufficiency.</p> <p>Where, upon appeal by the defendant, an examination of the record discloses that the evidence, upon the assumption that the court believed the plaintiff’s witnesses, is abundantly sufficient to support the finding, such finding will not be disturbed on appeal. — P. 74.</p> <p>3. Conveyances — Acknowledgment of Deed — -Allegation of Forgery — Proof—Sufficiency.</p> <p>In an action for the cancellation of a deed on the ground that the certificate of acknowledgment was forged, the proof should be decisive, explicit and clear. — P. 75.</p> <p>4. Cancellation of Instruments — Pleading—Defense.</p> <p>In an action to cancel a deed as a forgery, and its record, it cannot be pleaded as a defense or as a ground for affirmative relief that plaintiff held title to the land in trust for defendant, in that defendant paid the purchase money and took title in plaintiff’s name as a matter of convenience. — P. 75.</p>

Error bo the District Court of Arapahoe County. Hon. Owen E. Le Fevre, Judge. Action by the city of Denver against The Denver Union Water Company. From a judgment in favor of defendant, plaintiff brings error. Decision en banc. Mr. Justice Campbell not participating, and Chief Justice Steele concurring with exception that lie believes section 5 of the ordinance of 1890 to be enforcible.

Hon. E. E. Armour, Judge. Action by E. Gilbert against John Holmquist. From a judgment for plaintiff, defendant appeals. Decision en banc. Mr. Justice Campbell, Mr. Justice Gabbert, and Mr. Justice Maxwell dissent from the conclusion that the trustee’s application of the proceeds of the sale to the note, did not remove the bar of the statute.

<p> Appeal from the County Court of Clear Creek County. </p> <p> Hon. Henry J. Crist, Judge. </p> <p>Action by Axel F. Anderson against The Silver' Mountain Mine Company, a corporation. From a judgment for plaintiff, defendant appeals.</p>

Hon. Louis B. Cunningham, Judge. Action by Fred Marshall, as administrator for Walter Marshall, deceased, against The Cripple Creek Tunnel, Transportation & Mining Company, to recover for work and labor performed. From a judgment for plaintiff, defendant appeals.

Hon. W. D. Kelsey, Judge. Action by L. M. Street against Alex Sederburg, sheriff. From a judgment of dismissal, rendered on sustaining a demurrer to the amended complaint, plaintiff appeals.

<p>Appellate Practice — Findings—Conclusiveness.</p> <p>A finding and judgment upon conflicting evidence should not be disturbed on appeal. — P. 137.</p>

<p> Appeal from the District Court of El Paso County. </p> <p> Eon. Louis W. Cunningham, Judge. </p> <p>Action by Phillip J. Watson against The Maniton & Pikes Peak Railway Company, a corporation, and J. O. Hiestand. Prom a judgment in favor of defendants, plaintiff appeals.</p>

<p> Appeal from the District Court of the City and, County of Denver. </p> <p> Hon. Chas. C. Holbrook, Judge. </p> <p>Action by J. H. Heron, D. D. Sullivan, T. W. Connors, P. W. Boben, Francis Garvey, George F. Connors, 'James Mullen, D. W. McCain, William Quinn,-J. F. Rinsey, F. D. Amick, Albert Plahnewalt, and W. L: Davis, against Joseph Paxton and L. F. Long, The Canterbury Mining Company and Charles F. Saunders. From a judgment for plaintiffs, defendants appeal.</p>

Error from the District Court of the City and County of Denver. Hon. F. T. Johnson, Judge. Action by James J. Sullivan, on a promissory note secured by trust deed, against Albert D. Butter-' field. Prom a judgment for plaintiff, defendant brings error. Decision en banc. Mr. Justice Campbell, Ml.

Son. Frank W. Owers, Judge. Action by Edward J. Cavanaugh, against Prank 'G-. Patterson and Samuel B. Taggart. Prom a judgment for defendants, plaintiff appeals. The question presented by this appeal is the liability of directors of a corporation for indebtedness incurred thereby after the lapse of the period when, in accordance with the provisions of § 491, Mills’ Ann. Stats., such corporation should have filed its annual report.

Hon. J. Mack Mills, Judge. Action by The Denver Live Stock Commission Company against Cash Parks. From a judgment for defendant in the county court on appeal from a justice court, plaintiff appeals. This is an action in replevin commenced 'before a justice of the peace, and involves the right to the possession of a span of mules and a set of harness under the provisions of a chattel mortgage given to secure a promissory note executed by the appellee, defendant below.

<p>1. Appellate Practice — Bill of Exceptions — Preserved by Affidavit — Notice—Necessity.</p> <p>Under Mills’ Ann. Code, § 385, providing that when a judge refuses to sign a bill of exceptions, and it is sought to preserve it by affidavits, the opposite party shall have timely notice thereof, a bill so preserved will not be considered by the appellate court unless it appears that such notice was served.— P. 169.</p> <p>2. Appellate Practice — Insufficient Bill of Exceptions' — Affirmance.</p> <p>Where there is no proper bill of exceptions, and the assignments of error do not relate to matters determinable from an inspection of the record proper, the judgment will be affirmed. —P. 169.</p>

<p>Fraudulent Conveyances — Bank Deposit — Assignment.</p> <p>Plaintiff, having sued certain bank depositors, was about to garnish the deposit, which fact the depositors ascertained and, desiring bail on a criminal charge, made a check for $1,000, which was to have been delivered to B on condition that he would sign the depositors’ bond, which he refused to do. Whereupon the depositors, on the day, the deposit was garnished, assigned a $1,000 of the deposit to the intervener in consideration of his furnishing bond and employing an attorney, etc., to defend them, and antedated the assignment two days. Intervener paid out on the face of the assignment only $150 and did not furnish thg bond. Held, that such facts are sufficient to show that the assignment was for the benefit of the depositors and a fraudulent attempt to defeat the lien of the judgment and garnishment, and therefore the trial court was justified in finding for plaintiff. — P. 171.</p>

Hon. P. L. Palmer, Judge. Action by Harper M. Orahood against the city and county of Denver. From a judgment dismissing the complaint, plaintiff brings error.

Error to the District Court of the City and County of Denver. Hon. P. L. Palmer, Judge. Action by Harrison Cowell, Dennis Murto, as administrator of the estate of James F. Cowell, deceased, Adaline C. Sadd, Mabel Cowell, and Frederick Cowell, infant, by Adaline C. Sadd, his next friend, against Frank Guest Smith, Thomas Tunis Smith, Thomas Guilford Smith, The Academy of Natural Sciences of Philadelphia, Lila Smith, the unknown heirs of Charles E.

Hon. John I. Mullins, Judge. Action to quiet title by.Edwin N. Burr against Robert E. Foot, individually, and as trustee for Lydia L. Foster, and John Sanger. From a judgment for plaintiff, defendants appeal. Decision en bcmc.

<p>Appellate Practice — Finding Based on Conflicting Evidence — Not Disturbed on Appeal.</p> <p>A finding based upon conflicting evidence will not be disturbed on appeal. — P. 202.</p>

Hon. William P. Seeds, Judge. James Warford was convicted of murder, and brings error.' Plaintiff in error was convicted of the murder of Isaac T. Leabo.- The homicide occurred at polling precinct No. 48 in the city of Goldfield, Teller county, state of Colorado, on election day, November 8,1904.

Hon. Flor Ashbaugh, Judge. Action by A. Lipp against George S. Good, James Kerr, and F. C- Hitchcock, copartners, doing-business under the firm name and style of Geo. S. Good & Co. From a judgment for plaintiff, defendants appeal.

Hon. Frank T. Johnson, Judge. Petition by Tbe Bijou Irrigation Company to obtain a change in tbe point of diversion of water from an irrigation ditch. Prom a judgment for petitioner, The Lower Latham Ditch Company, The Union Ditch Company, The Pulton Irrigation Ditch Company, and The Platte Yalley Irrigation Company appeal.

<p> Appeal from the District Court of Pueblo County. Hon. John Voorhees, Juidge. </p> <p>Action by T. T. White against Sam Schecter. From a judgment for plaintiff, defendant appeals.</p>

Hon. Robert E. Leivis, Judge. Action by D. G-. Judd, F. C. Chamberlain and John Robertson against Minnie S. M. Robinson and Tbe Robinson Drug Company, a corporation, to enforce certain covenants restricting tbe use of defendants ’ property. From a decree of dismissal, plaintiffs appeal.

<p> Error to the District Court of El Paso County, </p> <p> Hon. Louis W. Cunningham, Judge. </p> <p>Action by Letitia Watkins against K. Macdermid. From a judgment for plaintiff, defendant brings error.</p>

<p> Appeal from the County Court of Larimer County. </p> <p> Hon. J. Mack Mills, Judge. </p> <p>Action by S. E. Eddy against Samuel Clammer. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Master and Servant — Mines and’Mining — Injuries to Miner— Operation of Cage — Evidence.</p> <p>In an action for the death of an employee caused by the wrecking of the cage on which decedent was being elevated, evidence reviewed and held insufficient to authorize a finding based on negligent construction. — P. 247.</p> <p>2. Same — Presumption of Negligence.</p> <p>The fact that an employee was killed while in the discharge of his duties in defendant’s mine does not raise the presumption that such death resulted from defendant’s negligence. — P. 248.</p> <p>3. Same — Presumptions.</p> <p>In an action for death of a miner by the wrecking of the cage, it was alleged that the wreck was the result of a defect in the guides at the floor of the 200-foot level, but the fall of a drill, which decedent was carrying and which caused the wreck, occurred before such level was reached. Held, that it could not be presumed in the absence of evidence to that effect, that the cage, which weighed over a ton, continued to rise from its own momentum after the power had been shut off, and then dropped back, since a fact will not be presumed, which there is no evidence to establish, nor can mere conjecture be resorted to in order to supply direct or inferential proof. — P. 249.</p> <p>4. Practice in Civil Actions — Negligence—Pleading—Issues and Proof.</p> <p>In an action for negligence, the plaintiff must be confined to the acts of negligence alleged and the results thereof causing the injury, as set forth in the complaint. — P. 250.</p> <p>5. Master and Servant — Mines and Mining — Defective Appliances — Injury to Miners.</p> <p>Where the engineer operating a mine cage was instantly warned by the shock from the wrecking of the cage, at the time decedent was killed, and stopped the cage as soon as it was possible, defendant’s failure to keep an electric signal by which the eager cou^d communicate with the engineer in operation was not contributory to the injury. — P. 250.</p> <p>6. Same.</p> <p>Failure of an employer to exercise reasonable, care to provide reasonably safe appliances to guard against injury to his employee, is not actionable unless it appears that such failure was the cause of an injury. — P. 251.</p> <p>7. Same — Assumed Risk.</p> <p>Decedent, who was 21 years of age, had been employed in defendant’s mine for nearly two years, his principal duty being to collect and carry steel on the cage from the workings of the mine to the surface. The 'company maintained a conspicuously posted rule forbidding men to carry steel loose in their arms on the cage, and requiring that all mining tools be placed in cars or lashed on the cage, a rope being placed in the cage for that purpose; and the danger of carrying steel in the cage unless secured was obvious to any person of reasonable intelligence. Decedent boarded tbe cage with several drills loose in his arms, and as the cage was moving upwards one of the drills fell and caught in the plates or timbers of the shaft, whereby decedent was thrown against the wall, crushed by the cage, and fell to the bottom of the shaft. Held, that decedent assumed the risk incident to so“ carrying such steel. — P. 252.</p> <p>8. Master and Servant — Assumption of Risk by Servant.</p> <p>An employee assumes the ordinary risks and dangers incident to the employment upon which he enters, and in which he continues, which are known to him, or which he might have ascertained as a person of ordinary prudence in his situation, by the exercise of ordinary care upon his part. — P. 252.</p> <p>9. Same — Mines and Mining — Injury to Employee — Co-employee Failing to Warn.</p> <p>Where decedent, a- person of 21 years, knew or could have known of a rule in defendant’s mine prohibiting the carrying of steel unlashed while being transported, and where the danger in connection therewith was obvious, defendant was not liable because the eager, who had no control over decedent and did not attempt to exercise any, failed to warn him that such method of carrying steel was dangerous.' — P. 252.</p>

<p> Appeal from the District Court of Delta County. </p> <p>Son. Theron Stevens, Judge.</p> <p>Action by George J. Lombard against The Overland Ditch & Reservoir Company. From a judgment for defendant, plaintiff appeals.</p>

Eon. Edward C. Stimson, Judge. Action by the board of county commissioners of El Paso County against W. E. Rohde and The Fidelity and Deposit Company of Maryland. Prom a judgment for defendants, plaintiff appeals.

Hon. Samuel L. Carpenter, Judge. Action by A. Goodstein against The Frantz McRay Iron Works Company. From a judgment for plaintiff on the merits, but refusing to sustain an attachment, plaintiff brings error.

Hon. Theron Stevens, Judge. Action by Edward Henry against the board of county commissioners of - the county of San Miguel. From a judgment for defendant, plaintiff appeals.

<p> Error to the County Court of Larimer County. </p> <p> Hon. J. Mack Mills, Judge. </p> <p>Action by Marie Lafitte against James- Vanderwark. From a judgment for defendant, plaintiff brings error.</p>

Appeal from the District Court of El Paso County. Hon. Louis W. Cunningham, Judge. An action for personal injury by Mary C. Nichols against The Colorado Springs & Interurban Railway Company. From a judgment for plaintiff, defendant appeals.

<p>1. Animals — Cruelty—Humane Society — Police Power — Constitutional Law.</p> <p>In the exercise oi the police power, the legislature may enact laws for the prevention of cruelty to animals, and designate officers charged with the execution thereof. — P. 284.</p> <p>2. Same — Due Process of Law.</p> <p>Where it is sought to deprive one of his property or to create a charge against it, he must have notice of the proceedings and he afforded an opportunity to he heard, or he will be deprived of his property without due process of law, in violation of the fourteenth amendment to the federal constitution and of § 25, art. 2, Colo, const.- — P. 288.</p> <p>3. Same.</p> <p>Mills’ Ann. Stats., §§ 111, 112, 114, which provide that any officer of the humane society may take charge of any abandoned or cruelly treated animals and provide the same with food and detain them until the expenses are paid, without restricting the power to cases of emergency and which fail to provide for any hearing to determine the facts, authorize the taking of property without due process of law and are in violation of the fourteenth amendment to the federal constitution' and of art. 2, § 25, Colo, const. — P. 288.</p>

Hon. John I. Mullins, Judge. Action by August Westerkamp against Tbe Chicago, Burlington and Quincy Railway Company. From a judgment for defendant, plaintiff brings error. Plaintiff in error brought an action to recover damages for injuries sustained, due to a train of defendant in error colliding with a wagon he was driving.

<p>1. Corporations — Foreign Corporations — Doing Business in State —Power to Regulate.</p> <p>The legislature has power to prescribe the conditions on which foreign corporations may ’ do business within the state, and to require a compliance therewith as a condition precedent to their invoking the jurisdiction of its courts. — P. 304.</p> <p>2. Same — Interstate Commerce.</p> <p>The legislature, in prescribing conditions on which a foreign corporation may do business within the state, may not impose any restrictions or burdens on interstate commerce. — P. 305.</p> <p>3. Same.</p> <p>A corporation of one state may send its agents to another to solicit' orders for its goods, or contract for a sale thereof, without being embarrassed by state requirements as to taking out licenses, filing certificates, establishing resident agencies, and the like, since such business constitutes interstate commercé. —P. 306.</p> <p>4. Same.</p> <p>A Missouri corporation, in pursuance of a sale of its products to a Colorado • corporation made by its traveling salesman, entered into a -written contract in the latter state with the domestic corporation to furnish manufactured materials f. o. b. • at its plant and office in St. Louis, and, in pursuance thereof, the materials were furnished. Held, that the sale and delivery of the materials did not constitute doing business within §§ 4, 10, c. 52, Sess. Laws 1901, prescribing the terms on which foreign corporations may do business within the state; and that such corporation had a right to invoke the aid of the Colorado courts in the collection of -the indebtedness accruing to it by reason of 'such transaction. — P. 311.</p> <p>5/ Same — Compliance with Requirements.</p> <p>;Where a foreign corporation subsequent to the commenceihent of an action on a contract made with a domestic corporation, complies with §§ 4, 10, e. 52, Sess. Laws 1901, prescribing the terms on which a foreign corporation may do business within the state, and prohibiting the exercise of corporate powers, or the prosecution or the defense of actions until such requirements have been complied with, it may maintain the action and enforce the contract, since the prohibition is only provisional, and may be removed at any time. — P. 311.</p>

Hon. Ben. B. Lindsey, Judge. Action by W. E. Wilmer against Tbe National Automatic Furnace Company, a corporation, C. C. Wilson, and three others. From a judgment for plaintiff against defendant company and C. C. Wilson, they appeal.

<p>Former Opinion Followed.</p> <p>The judgment in this case is affirmed, in accordance with Jenks y. Stump, ante, p. 281.</p>

Hon. Peter L. Palmer, Judge. Bobert Saleen was convicted of larceny. A motion to annul the conviction and discharge accused was denied, and he brings error. Decision en banc.

Eon. John E. Voorhees, Judge. Actions by George Hammond against The Hartford Fire Insurance Company and against The Liverpool and London and Globe Insurance Company. From a judgment in favor of plaintiff in each case, defendants appeal.

<p>1. Practice in Civil Actions — Conduct of Trial — Right to Open and Close.</p> <p>In an action on a note by the transferee, an affirmative defense and counter-claim virtually admitted ail the allegations of the complaint, but a separate defense, while admitting the note’s execution and nonpayment, denied the indorsement and transfer to plaintiff, and such denial was not waived by defendant. Held, that the burden was on plaintiff to prove his ownership, and it was not error to refuse permission to defendant to open and close in introducing evidence and addressing the jury. —-P. 332.</p> <p>2: Pleading — Replication—Sufficiency.</p> <p>In an action on a note given in payment for an automobile, where the answer sets up a warranty and its breach, and alleges facts as constituting fraudulent representations in effecting the sale, a replication denying that plaintiff “made any false, untrue and fraudulent statements and representations to the said defendant,” and that defendant was damaged thereby, does not traverse the affirmative averments, since it is merely a conclusion of the pleader, and in the conjunctive, instead of the disjunctive. — P. 332.</p> <p>3. Same.</p> <p>Affirmative averments in an answer of fraudulent representations by plaintiff and bis agent in a sale, are not put in issue by a replication stating that plaintiff bas not and cannot obtain sufficient information upon wbicb to base a belief, since plaintiff is presumed to know wbat be and bis agent said and did in effecting the sale. — P. 333.</p> <p>4. Pleading — Naming Pleadings — Necessity.</p> <p>It is not necessary that any particular or technical name be given a pleading, since if it states facts which constitute a cause of action or defense, it is sufficient. — P. 333.</p> <p>5. Sales — Express Warranty — Breach—Pleading.</p> <p>An answer which alleges that plaintiff and his agent made to defendant, as a statement of fact and not of opinion, a positive affirmation, at the time, and as part of a contract of sale, that an automobile sold was in first-class condition, and that it was suitable for the particular purpose for which defendant wanted it, of which plaintiff was advised, and further alleging- that it was not in that condition, which defendant afterwards discovered, sufficiently sets forth an express warranty and its breach. — P. 334."</p> <p>6. Practice in Civil Actions — Instructions—Application to Case.</p> <p>Where it is alleged in the pleadings, and proof offered, that a seller expressly warranted the article sold to be in thoroughly good condition, it is error to charge “that in all cases of sale of personal property between private parties, a warranty of title is implied but not a warranty of quality,” and that, in the absence of fraud, the rule of caveat emptor applies, and that no express warranty is pleaded or sought to be proved in the case, since the charge is controverted by both the pleading and proof. —P. 336.</p> <p>7. Sales — Breach of Warranty — Fraud—Rescission by Buyer— Time for Making.</p> <p>A buyer has a reasonable time for examination of articles purchased, and a reasonable time to rescind after his discovery of a breach of warranty or of fraud that vitiates the sale.— P. 337.</p> <p>8. Appellate Practice — Instructions—Evidence—Exceptions.</p> <p>The evidence may be reviewed on appeal to determine the applicability and correctness of- instructions based upon it, although no objection was made to the judgment which otherwise would preclude an examination of sufficiency to support the verdict. — P. 337.</p>

<p>1. Landlord and Tenant — Forcible Entry and Detainer — Persons Entitled to Sue.</p> <p>Mills’ Ann. Stats, § 1973, subd. 5, provides that any person shall be deemed guilty of unlawful detainer, when as a tenant be holds over without his landlord’s permission, contrary to his agreement, after three days’ notice in writing requiring delivery of possession. Held, that wher.e a tenant covenanted that it should be lawful for the landlord to enter for breach of any of the covenants of the lease and to remove any person occupying the premises and repossessing them as of his former estate, and the tenant held over after notice to quit and after lease to another for the ensuing term, the landlord was entitled to sue for unlawful detainer, both under the lease and under the statute, though the right of action for forcible entry was in the new lessee; nor can such tenant be allowed to defend against her own contract upon the ground-that a second lease has been executed. — P. 342.</p> <p>2. Landlord and Tenant — Renewal of Tenancy by Payment of Water Rent.</p> <p>A tenant was charged by mistake and paid water rent for a' term extending one month beyond the termination of her lease, such payment being made before a breach of the terms of lease by her holding over after the term. Held, that such payment was insufficient to renew the tenancy under the rule that, in order that the receipt of rent shall operate as such renewal, it must accrue after forfeiture and have been received by the landlord with knowledge thereof. — P. 343.</p> <p>3. Evidence — Parol Evidence to Vary Written Contract.</p> <p>Where a written lease was for three years, parol evidence was inadmissible, on the ground that the lease did not cover the entire contract, to 'show a prior agreement that the term should be five years instead of three, since it would contradict the express term by the contract.' — P. 344.</p> <p>4. Practice in Civil Actions — Direction of Verdict.</p> <p>Where, in an action for unlawful detainer, there was no evidence which should have gone to the jury, nor any matter presented for the jury’s determination which would deprive the landlord of his right of re-entry and possession under the terms of a written lease, the court properly directed a verdict for plaintiff. — P. 345.</p>

Hon. E. E. Armour, Judge. Peter Wickham was convicted of murder in the first degree, and he brings error. Decision en banc, Mr. Justice Bailey and Mr. Justice Caswell dissenting.

<p>1. Cities and Towns — City and County of Denver — Local Improvements — Assessments—Suits to Annul.</p> <p>Section 34, art. 7, charter of city and. county of Denver, requiring all actions to annul assessments for local improvements, not involving constitutional rights, to he commenced within thirty days after the passage of the assessing ordinance, or the right to question the assessment is waived, cannot he construed as applicable only to valid assessments, since assessments which are concededly valid cannot be successfully attacked by an action commenced within thirty days after the passage of the assessing ordinance. — P. 365.'</p> <p>2. Constitutional Law — City and County of Denver — Charter Provisions — Deprivation of Property Without Due Process of Law — Waiver.</p> <p>Section 34, art. 7, charter of city and county of Denver, requiring actions to annul' assessments for local improvements, not involving constitutional rights, to be commenced within thirty days after the passage of the assessing ordinance, when considered in connection with § 62, providing that no action shall be brought within ninety days after the passage of the assessing ordinance, is not invalid, as depriving persons of their property without due process of law, since persons are given an opportunity to contest assessments in court, but they must commenee their actions within the period specified, or they will he deemed to have waived their right to do so. — P. 365.</p> <p>3. Writ of Error — Questions Not Raised in Trial Court — Review.</p> <p>Questions not presented to and determined hy the trial court cannot he reviewed in the supreme court. — P. 366.</p>

Hon. P. L. Palmer, Judge. Action by W. C. Mitchell against The Minnequa Town Company. From a judgment for defendant, plaintiff appeals.

<p>1. Set-off and Counter-claim — Proper Subjects.</p> <p>Where payments by a reservoir company to workmen of a contractor employed by it were made under an arrangement with the contractor, entered into before the rights of an assignee of the contractor- had attached, such payments were a proper charge against both the contractor and his assignee in an action against the company for work done by the contractor, although made after the assignment. — P. 374.</p> <p>2. Appellate Practice — Review—Findings of Fact.</p> <p>The findings of a trial court upon conflicting evidence will not be considered on appeal. — P. 375.</p> <p>3. Appellate Practice — Harmless Error — Examination of Witnesses.</p> <p>The refusal of the trial court to permit plaintiff to call as a witness the engineer of defendant company, as the company’s representative for the purpose of cross-examining him, even if proper to do so under Sess. Laws 1899, p. 178, was not prejudicial error where he was actually called as a witness for both parties and subjected to a most rigid and prolonged examination, and cross-examination by counsel for plaintiff. — P. 375.</p> <p>%4. Contracts — Change—Extra Expenses — Liability.</p> <p>Where, after the commencement of work under a contract, the company for whom the work was done required the contractor to do work not included in the specifications, entailing extra work, it was liable for the extra expense caused by the changes. — P. 376.</p> <p>5. Appellate Practice — Harmless Error.</p> <p>Where, in an action by a contractor and his assignee for work done by the contractor, the amount erroneously charged against the contractor on defendant’s counter-claim did not exceed the amount of the judgment rendered in defendant’s favor, the judgment would not be reversed on appeal by the assignee alone, as the error was harmless as to him. — P. 378,</p> <p>6. Contracts — Failure to Complete — Cost of Completing.</p> <p>Where, by the terms of a contract for work to be done for a reservoir company, the company, upon inability of the contractor to perform, reserved the right to complete the work and deduct the cost thereby incurred from the total amount to be paid the contractor, the company, upon being obliged to complete the work, was entitled to the amount it cost to finish the work; and this is true as to the assignee of the contractor, although the assignment was made prior to the completion of the work, since the assignee took subject to the rights and equities the company had against the contractor; and the value of such work cannot be fixed arbitrarily as against the assignee, but the actual cost must be proven. — P. 380.</p> <p>7. Same — Practice in Civil Actions — Evidence—Sufficiency.</p> <p>In an action by a contractor and his assignee for work done for a reservoir company prior to the contractor’s abandonment of the contract, evidence reviewed, and held insufficient to sustain finding of trial court as to cost of completing the work abandoned by the contractor. — P. 381.</p> <p>8. Practice in Civil Actions — Trial by Court — Findings of Fact— Sufficiency.</p> <p>Where, in an action for work done under a contract with a reservoir company, it is necessary to examine a large mass of figures and make extended mathematical computations, specific findings of fact should be made, and the account stated showing what items were allowed to the respective parties, since in such way only can the appellate court, upon a written record, intelligently review the evidence or determine whether proper allowances have been made. — P. 382.</p>

<p>1. Water Rights — Water Companies — Rights, Duties and Liabilities.</p> <p>The measure of the rights, duties and liabilities of a water company and the water consumers, is to be found in the statutes of the state and in the contract, and not in the rules of the company. — P. 390.</p> <p>2. Same.</p> <p>A water company conveyed water rightsi by deed, stipulating that the grantee might relocate the rights, provided that location could be made on land lying nearer the headgate of the main canal, and without detriment to, or any liability of, the company. A third person acquired a half of an 80-acre water right, and his land was lying nearer the headgate of the main canal than any of the land which had theretofore been irrigated with water obtained upon this right, and could not be irrigated by water taken from the main canal through any existing headgate. Held, that he was entitled to a headgate over the objection that a multiplicity of headgates weakened the canal and increased the expense of maintaining it, since the detriment or liability mentioned in the contract meant detriment or liability out of the ordinary; and that he was also entitled to such headgate under Mills’ Ann. Stats., § 2288, requiring owners of any canal used for irrigating purposes to construct the necessary outlets for a proper delivery of the water to persons having right to the use thereof. — P. 390.</p> <p>3. Same.</p> <p>Where it is practicable for two or more consumers to draw water from a canal for the irrigation of their lands through one headgate, that may be done; but where a water consumer cannot thus obtain water, he is entitled, under Mills’ Ann. Stats., § 2288, to compel a water company to construct a necessary head-gate at the expense of the water consumer. — P. 392.</p>

<p>1. Railroads — Injuries to Animals — Statutory Construction — Fencing.</p> <p>Mills’ (Rev.) Stats., § 3712a, provides that every railroad company whose lines or any part thereof are open to use within six months after the passage of the act, and every railroad company whose lines are not now open for use shall, within six months after its lines or any part thereof are open to use, erect and maintain fences except at public crossings and in incorporated towns or cities, and such railroad companies shall be liable for all damages done by their trains to any cattle on their tracks, until such fences are so constructed; and § 3713, 3 Mills’ (Rev.) Stats., provides that any railroad company operating its roads and failing to fence shall be absolutely liable to the owners of any such live stock killed by its engines or cars. Held, that such provisions, being in derogation of the common law, must be strictly construed; and that, where a plaintiff elects 'to prosecute under the statute for the killing of stock, in the absence of proof that any of defendant’s lines or any part thereof was open for use at the time of the passage of the act or within six months from its passage, or from the time it took effect, or that defendant’s‘lines were not open for use at the date of the passage of the act, he cannot recover. — F. 396.</p> <p>2. Same.</p> <p>3 Mills’ (Rev.) Stats., § 3712a, further provides that, when the required fences have been built and duly made, and shall be kept in good and sufficient repair, the railroad company shall not be liable for any damage to stock, unless negligently and willfully done. Held that, to recover under the statute, a plaintiff must not only prove that his stock was killed on a railroad open for use, as designated by the statute, but that they entered upon the track, and were struck at a place where the statute required the railroad company to fence; or, if at a place not required to be fenced, that the accident was the result of a negligent and willful act of defendant or its agents; and, therefore, where plaintiff elected to prosecute under the statute,’ and merely proved his ownership of the cow killed, that she was struck by defendant’s engine on a public road or highway, the value of the cow, and a demand for payment, he could not recover. — P. 397.</p>

<p> Appeal from the District Court of Teller County. </p> <p> Hon. Louis W. Cunningham, Judge. </p> <p>Action by L. E. McGarry against The Colorado Midland Railway Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p> Appeal from the District Court of Boulder County. </p> <p> Hon. James E. Garrigues, Judge. </p> <p>Action by Henry N. Coffey against L. Ingemarson and N. J. Nelson. From a judgment for plaintiff, defendants appeal.</p>

Hon. Frank T. Johnson, Judge. Action for personal injuries by Charles B. Harry-man against The Diamond Rubber Company and the city and county of Denver. Prom a judgment for plaintiff, defendants appeal.

<p> Appeal from the District Court of Pueblo County. </p> <p> Hon. N. Walter Dixon, Judge. </p> <p>Action by T. H. Foley against "W. II. Coon and Joseph Y. Levie. From a judgment for defendant Levie, plaintiff appeals.</p>

<p>1. Corporations — Foreign Corporations — Action by — Defenses— Statutes — Retroactive.</p> <p>In an action by a foreign corporation to recover for goods sold in 1899, its failure to comply with. Sess. Laws 1901, c. 52, §§ 4, 10, and Sess. Laws 1901, c. 94, § 70b, requiring the payment of certain fees, and the filing of certain papers by foreign corporations, is not a good defense, since these statutes were not retroactive. — P. 43.9.</p> <p>2. Pleading — Answer—Demurrer to Pleading Good in Part.</p> <p>Where defendant’s answer, in addition to alleging facts not constituting a good defense, denies the corporate existence of plaintiff, a demurrer to the answer as a whole should he overruled, since a denial to a material allegation cannot be demurred to, as the proper manner of reaching it is by motion. — P. 439.</p> <p>3. Same — Demurrer.</p> <p>Though a demurrer to an answer alleging immaterial facts, in addition to denying plaintiff’s corporate existence, was properly overruled, it was error to give judgment for defendant on such demurrer, since the issue of plaintiff’s incorporation remained to be tried. — P. 440.</p> <p>4. Appellate Practice — Complaint—Failure to State Cause of Action — No Objection Below.</p> <p>Although the failure of a complaint to state a cause of action may be raised for the. first time on appeal, if it is apparent from the complaint that such defects might have Been caused by slight amendments previous to or during the trial, the opposite party will not be permitted to take advantage of them on appeal. — P. 440.</p> <p>5. Appellate Practice — Objections Made First on Appeal.</p> <p>An objection made for the first time on appeal is not favored, though it is one which may be properly raised at any time during the case. — P. 441.</p> <p>6. Appellate Practice — Bills of Exceptions — Necessity — Statutory Construction.</p> <p>A bill of exceptions is not necessary to have reviewed a decision overruling a demurrer to a pleading, since § 387, Mills’ Ann. Code, makes it a part of the record. — P. 441. .</p> <p>7. Courts — Jurisdiction — Supreme Court — Court of Appeals— Cases Transferred.</p> <p>While an action involving less than $100 cannot be appealed to the supreme court, since cases pending in the court of appeals at the time of consolidation were by such act transferred to the former, the supreme court has jurisdiction of all such cases, though involving less than $100, as a judgment involving any amount could be taken to the court of appeals. — P. 442.</p>

<p> Appeal from the District Court of Logan County. </p> <p> Hon. E. E. Armour, Judge. </p> <p>Mandamus by C. Forward against J. C. Chip-man. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Railroads — Killing Stock — Common-Law Liability.</p> <p>In order to recover judgment against a railroad company at common law for killing or injuring stock, the proof must show that the animal was injured or killed by the operation of the company, and that such injury or killing was the result of negligence. — P. 446.</p> <p>2. Same.</p> <p>Proof that an animal was found with its back broken near a railroad track at a place where the track was straight for about half a mile in each direction, and that there were no obstructions on the track, although sufficient to warrant a finding that the animal was killed by a train, is insufficient to show negligence, which is essential to a recovery at common law, — P. 446.</p>

Appeal from the District Court of Conejos County. Hon. Chas. C. Holbrook, Judge. Action by Louis Nelson against Fordyce M. Knapp and Edmund R. Knapp to quiet title to land. From a judgment for plaintiff, defendants appeal.

Hon. E. E. Armour, Judge. Information in the nature of quo warrmto by the people, on relation of S. A. Smith, against Ella L. Crissman, as registrar of titles, in and for Logan county, Colorado. From a judgment for defendant, relator brings error. Decision en banc. This is an information in the nature of quo warranto to determine the right of the defendant in error to the office of registrar of land titles.

<p>1. Limitation of Actions — New Promise — Sufficiency.</p> <p>In order for a new promise to remove the bar of the statute, it should be unequivocal and determinate in its terms, and, if any conditions are annexed, they ought to be shown to be performed; and, when a promise is to be implied from an acknowledgment, such acknowledgment ought to contain an unqualified admission of a previous subsisting debt, which the party is liable and willing to pay.- — P. 465.</p> <p>2. Appellate Practice — Findings Based on Conflicting Evidence - — Not Disturbed on Appeal.</p> <p>Where the evidence is conflicting and legally sufficient to sustain the finding of the court, it will not be disturbed on appeal. — P. 466.</p> <p>3. Same — Appellate Practice — Bills and Notes — Harmless Error —Evidence.</p> <p>Where, in an action on a note, it is established that defendant acknowledged the debt, so as to remove the bar of the statute of limitations, evidence that defendant made an agreement not to set up such statute would, as to the defendant, be harmless error. — P. 466.</p>

Hon. Christian A. Bennett, Judge. Action by Charles D. McPhee and John J. Mc-Ginnity, co-partners as McPhee & McGinnity, against William E. Day on an appeal bond, and to the latter’s cross-complaint George E. Boss-Lewin, by order of court, was made a party to the action. Prom judgment for plaintiffs, defendant appeals.

<p> Appeal from the District Court of Douglas County. </p> <p> Hon. Louis W. Cunningham, Judge. </p> <p>Action by Thomas J. King against Pleasant W. O’Brien. From a judgment for plaintiff, defendant appeals.</p>

Hem. Frank W. Oiuers, Judge. Action of replevin by Tbe Cardwell Bine Print and Supply Company against Harris Newton and Prank A. Newton, partners under tire firm name of Newton’s Collateral Loan Bank. Prom a judgment for plaintiff, defendants appeal.

Error to the District Court of the City and County of Denver. Hon. John I. Mullins, Judge. Frank Burcher, W. J. Kirk, Charles L. Kirk, and The Colorado Towel Supply Company were convicted of violating the “Women and Children Labor Act,” and they bring error. Decision en banc.

Hon. Chas. C. Holbrook, Judge. Trover -by Alonzo Hubbard against James L. Hurt. From a judgment for plaintiff, defendant appeals. Appellee, plaintiff below, brought an action against appellant, as defendant, to recover from the latter the value of cattle wbicb plaintiff claimed belonged to Mm, and which, it was alleged, defendant bad wrongfully converted to- bis own use.

Hon. P. L. Palmer, Judge. Action by Allie J. Simonson, John E. Simonson and Florence Simonson, co-partners doing business under the firm name of The Fidelity Beal Estate and Loan Company, against Edna McHenry. From a judgment for defendant, plaintiffs appeal. This is an action to recover the possession of certain goods and chattels.

<p>1. Eminent Domain — Injury to Property — Damages-^Grounds.</p> <p>The mere fact that plaintiff, near whose property a railroad viaduct crosses a street, uses the street more frequently than other people, and is more frequently inconvenienced by such viaduct, does not entitle him to damages against the railroad, hut the damages must apply specially to plaintiff’s property. — P. 515.</p> <p>2. Appellate Practice — Practice in Civil Actions — Evidence— Sufficiency of Objections — Exceptions.</p> <p>An objection to the admission of testimony, on the ground that it calls for the witness’s opinion and usurps the province of the court or jury, should specifically state that the question calls for h fact not provable by opinion, in order to make an objection thereto available on appeal. — P. 517.</p> <p>3. Evidence — Opinion Evidence — Admissibility—Invading Province of Jury.</p> <p>In an action for damages to real property by the construction of a railroad,'questions asked witnesses as to the value of the property or its rental value before the construction of the railroad, and its value afterwards, do not invade the province of the jury by calling for opinions as to the damages suffered. —P. 518.</p> <p>4. Practice in Civil Actions — Evidence—Objections—Sufficiency.</p> <p>In an action for damages to real property, an answer of a witness, stating his estimate of the amount of the depreciation of the property, while objectionable as stating the very matter in issue before the jury, was properly admitted over an objection that it was “incompetent, irrelevant, and immaterial, and that the witness had not shown special qualification.”' — P. 518.</p> <p>5. Appellate Practice — Harmless Error.</p> <p>In an action for damages to land by the construction of a railroad, a question asked a witness as to the depreciation in value of the property by reason of the construction of the railroad, although improper, was not prejudicial where the witness, in answer to other questions, stated the value with and without the railroad. — P. 520.</p> <p>6. Appellate Practice — Practice in Civil Actions — Opinion Evidence — Questions Preliminary to Admission of Evidence.</p> <p>Whether a witness is qualified to testify to a matter of opinion, is a preliminary question for the presiding judge, and his decision is conclusive unless clearly erroneous in matter of law. —P. 521.</p> <p>7. Pleading — Amendment—Discretion of Court.</p> <p>After the jury is impaneled, it is within the discretion of the trial court to allow an amendment to the complaint to correct a mistake. — P. 522.</p> <p>8. Appellate Practice — Pleading — Amendment — No Prejudice Shown.</p> <p>Although the trial court may have erred in allowing an amendment to a pleading after the jury was impaneled, in the absence of prejudice to opposite party appearing or being claimed, sueb error will be disregarded on appeal. — P. 522.</p> <p>9. Evidence — Value of Property — Assessment Roll.</p> <p>In an action for damages to real property by tbe construction of a railroad, it was not error to refuse tbe admission of an assessment roll showing tbe valuation of tbe property for assessment purposes, made T>y tbe county assessor, as evidence of tbe value of tbe property. — P. 522.</p>