Volume 51 — Colorado Reports

<p>1. Removal of Causes — Fraudulent Joinder of Defendant to Prevent — An alien or citizen of another state' has an absolute right, in a proper case, to remove to the federal court a cause pending against him in the state court, and this right is not to be defeated by joining as defendants, residents and citizens who have no interest in the controversy — (28).</p> <p>A plaintiff may join resident citizens as defendants, in his action against an alien or non-citizen, for the sole purpose of preventing the removal of the cause, provided he has a joint cause of action; but where in such case his complaint wiholly tails to state a joint cause of action, such failure warrants th,e conclusion that the joinder of the resident and citizen defendants was fraudulent- — (27, 34).</p> <p>Where a miner suing for an injury attributed by his complaint to the alleged joint and concurring negligence of his employer, am alien corporation, and the tram-boss' and shift-boss, his immediate superiors, residents and citizens, in permitting the place of his work to be unsafe, not averring that the corporation had delegated to these individual defendants, or either of them the duty to make the place safe, it was held that no cause of action was shown as against them, and not withstanding their joinder the alien • corporation was entitled to remove the cause:</p> <p>An averment that the t] am-boss had assured plaintiff that the place was safe, and ordered him to continue working there, not alleging that the tram-boss had any authority in this respect ’ from the company,' was held to state an independent cause of action against the 'tranx-boss alone, which the corporation was in no manner responsible, and which therefore was no impediment to the removal of the cause on its petition — (27).</p> <p>2. -Issue of Fact — Where a citizen and resident plaintiff institutes his action against citizen and resident defendants, and an alien defendant, a petition, for removal, by the alien defendant, alleging that the individual defendants were fraudulently joined, merely to prevent the removal of the cause to the federal oo-urt, presents an issue: of fact' triable only in the federal court, and the cause is removable, for this reason alone— (27).</p> <p>3. -Petition — Where the complaint in the cause sought to be removed shows upon its face grounds for removal, it is not necessary to repeat in the petition the facts so disclós'ed. — " (29).</p> <p>4. ——Effect of Petition and Bond — Where a petition showing grounds to remove the cause to the federal court is presented, with a sufficient bond, the jurisdiction of the state court, except to grant the petition, is ousted, the cause is-at once removed, and all other proceedings in the state court -are coram non judice — (.30).</p> <p>5. Parties — Joinder of Defendants■ — Joint Torts — Two or more are not to be joined as defendants to, an action for a tort, merely because each is liable therefor. The injury must -be the result, in some sense, of their joint action, before they can -be made jointly, liable therefor — (26).</p> <p>6. Pleadings — Complaint — Construction — A complaint against a mining corporation and two, of its subordinate officers, for an injury to a common miner, attributed to the joint and concurring negligence of all the defendants, construed: and held to state no cause of action as against the defendants jointly— (2i4, 25).</p>

Original application for writ of habeas corpus. Petitioner John Chemgas, alleges that he was unlawfully convicted in the district court' of the city and county of Denver, and sentenced to the penitentiary on the following information: “State op Colorado, City and County op Denver. In the District Court, Second Judicial District. The People op the State op Colorado v. Peter Horons & John Chemgas.

<p>Original Petition for Writ of Habeas Corpus.</p>

John T. Shumate, Judge. The appellants were the joint owners of a concentrating mill building and the machinery therein, which was used for concentrating the ores mined from their properties. The appellees were, respectively, treasurer and sheriff of Pitkin county.

<p>1. Trustee — Deposit of Trust Funds — One who receives money to hold for auiobheir, should, if he places it in bank, deposit it as a trust fund, and not to his individual credit — (62). ,</p> <p>2. Attorney — Misconduct—An attorney who in a business ■ transaction is guilty of conduct involving moral turpitude will be disbarred — (64).</p>

<p>Appeal from Denver District Court. — Hon. Frank T. Johnson, Judge.</p>

<p>1. Judge’s Chambee — Must Bé Located Within the District— Under Sec. 471 Rev. Code (Sec. 436 Mills Cod-e), a judge may make orders, and exercise judicial authority, only when sitting in court, or at his chambers; .and under Rev. Code Secs. 443, 444, (Mills Ode Secs. 408, 409) the chambers of a district judge must be located within his district. An attempted exercise by a district judge, of judicial authority, in a matter pending in, or pertaining to, the courts of his district, at a time when he is outside of his district, is without wiarnainlt of law and void — (8l5J88).</p> <p>To present to a judge an affidavit of the facts .constituting a contempt, as required by the code (Rev. Code Sec. 356, Mills Code Sec. 322) is to lay it before him for judicial consideration and action. This is the first step ini the proceeding against the contemnor, and the presentation must be made at a place where judicial consideration and action may lawfully ensue. Until this is done the proceeding cannot be said to have commenced, or the charge® to have been made; therefore a warrant for an. attachment for am. alleged contempt, issued by a district judge while he is absent from his district, though within the State, upon affidavits presented to him while so without his district, is a nullity, and should he quashed upon motion — '(90).</p> <p>2. Statutes — Construed—A statute (Rev. Code Sec. 471, Mills Code Sec. 436) provides that “the judges of courts of record shall at all reasonable time®, when not engaged in holding courts, transact such business at their chambers as may he done out of court. * * * They may hear anid dispose of all applications for orders and writs which are usually granted om ex parte application, and may, in their discretion, also hear applications to discharge such orders and writs.” Held, a positive direction that all judicial action had out of court shall be had at the chambers of the judge. Held further, that the chambers of a judge of the district court must be located within his district — (85-88).</p> <p>The provision of the code that to initiate proceedings to punish a contempt not committed in the presence of the court an affidavit of the courts constituting the alleged contempt “shall be presented to the court or judge (Rev. Code Sec. 356, Mills Code Sec. 322) imports that the- affidavit is to be laid before the judge for judicial consideration and action; and under the provisions of Rev. Code Secs. 471, (Mills Code Sec. 436) such .presentation) must be to the court, sitting as á court, oir to the judge, at his chambers, where -alone, judicial consideration and action can be had — (84, 85).</p> <p>•3. Motion ■— Construction — Waiver — A motion to quash an attachment issued by a district judge; -not sitting in court mor within his district, for an alleged violation of an injunction, ■set forth as grounds thereof (1) That the Court had no jurisdiction to allow the injunction. (2) That plaintiff in the injunction suit had no capacity to maintain an action in Colorado. (3) That mo affidavit had been presented to the judge, within the limits of the judicial district setting forth any facts .as to the alleged contempt.</p> <p>The assignment of the first two ground® of the motion was held no waiver of the last — (90).</p>

<p>Error to Boulder District Court — Hon. JAMES EGarrigues, Judge.</p>

<p>Error to Chaffee District Court — Hon. Morton S. Bailey, Judge..</p>

<p>1. Appeal — Findings on Sufficient Evidence, are conclusive on appeal — (102).</p> <p>2. Equity — Reformation of. Writing — Insurance Policy— Harris, managing an establishment known as “The EXPOSITION,” applied for insurance upon the merchandise and fixtures therein, the property of -one Arlcush, as well as upon certain household goods therein, his individual property. Under the instructions of the insurer’s agent he made a single application in the name of “The EXPOSITION, Ernest Harris, Mngr.,” specifying the goods insured, the insurance on, each, but not alluding to the separate ownership. This application being forwarded', by the agent, without explanation, the policy wias issued to Harris, describing both his goods and those of Airkush. Harris being unfamiliar with business and business forms, accepted, the policy with only a casual examination of it, and paid, the premium. In framing the policy the company inserted the name of Harris' as the insured, deliberately, and of set purpose, because under its by-laws, it was required that only individuals could be insured, who thereby became members. Held, that nevertheless, giving the policies this frame must be deemed a mutual mistake, repugnaint to the real intent of the parties, to-wdt, the indemnification of both Harris and Arku-sh against loss upon their separate individual properties, and that equity might reform the policy so as to make is express the real intent — (103, 104).</p> <p>3. Insurance — Soliciting Agent Represents Insurer — The-agent of an insurance company preparing an application for insurance represents the insured, and the knowledge which he acquires in the premises is the knowledge'of the company — (106).</p> <p>4. -Title of Insured — Where chattels owned’ in severalty by two parties, are, upon application by one of them, insured) as the property of that one alone, amid' are at the time under mortgage, of which no mention is made in the application or policy, but the agent of the insurer has at the time explicit information of the separate ownership of the chattels, the policy is not avoided, even though it expressly provides that it shall be void, “if the interest of the insured be other than unconditional and' sole ownership * * * or be or become encumbered' by chattel mortgage” — (109).</p> <p>5. -Application — Question not Answered — Where one of the • questions set down in the printed form of application tor insurance is not answered, or is answered imperfectly, it is the duty of the insurer, if more specific information is desired, to apply for it before issuing the policy. The acceptance of such imperfect application, and issuing the policy, is a waiver of the imperfection — (112).</p> <p>6. -Condition against Encumbrance, applicable to the insured property as am entirety, is not broken by the encumbrance of a part only — (112).</p> <p>7. -Conditions Known to Agent, and by which the policy is made void from the beginning, are waived, when the state of facts leading to this result is known to the soliciting agent at the time of accepting the application — (113).</p> <p>8. Estoppel — By Conduct — One who in applying for insurance makes full and truthful disclosure of the state of the title of the property insured, and in framing the application acts under the directions of the soliciting agent of the insurer, and after-wards accepts the policy transmitted to him, and pay® the premium thereon, is not estopped to demand a reformation of the' policy, where in fact, if fails to conform to the application in respects which did not attract his attention, upon receiving it — ■ (114).</p>

<p>1. Quieting Titl-” — Tender of Taxes not Required■ — Para-mount owner of land may have a bill to quiet title as against one •claiming under a tax title, without tender of the taxes and statutory penalties — (119).</p> <p>2. Tax Deed — Sale to County — A tax sale is commenced on thtei 19th of the month. Certain land® are offered, on that and the succeeding day, and on the latter day are struck off to the county. The sale continues until and upon the 26th of the month. 'The sale and the deed thereunder are void — (120).</p> <p>3. Tax Sale Ceetieicate — Assignment by County Cleric- — The County Clerk has no authority to assign a tax sale certificate •after three years from its date (Mills Stat. Sec. 3888), and a ■ deed issued upon such assignment is void — (121).</p> <p>4. Summons — Service by Publication — To confer jurisdiction •of the person by constructive service of process the statute must he strictly complied with. Where the record shows such service by publication only, upon an affidavit containing no positive averment of defendant's non-residence, no averment at all of defendant’s departure from the state or his concealment to avoid process, ruor of Ms post office address, the judgment is a nullity and may be assailed even collaterally, by any omie with whose rights it conflicts — (121, 1,22).</p> <p>The recitation in the judgment record that jurisdiction of the defendant has been obtained is not conclusive where a view of the entire record discloses the contrary — (122).</p> <p>Where the record is entirely silent upon the question it will be presumed in support of the judgment that the court proceeded regularly, and that what ought to have been donte was done; but where an affidavit which attempts to show constructive service of proof is found, it will not be presumed that some other and different showing was made — (1230-</p> <p>The provision! of the Code (Mills Code Sec. 44, Rev. Code Sec. 50) that, “from the time of the filing of the complaint * * * the code shall be deemed to have acquired jurisdiction,” has not the effect to confer jurisdiction of the person by the mere filing of the complaint; to give it this construction would render it obnoxious to both the federal and state constitution and permit the tailing of property without process, notice and day in court. The provision merely conifers jurisdiction of the subject matter, not of the person — (122, 123).</p> <p>5. Evidence — Presumptions—Nothing appearing to the contrary it will be presumed that every officer performs his duty. It being the duty of the treasurer to execute a certificate of purchase to each purchaser, at the conclusion of the tax sale, ist will be presumed, the date of a certificate not appearing, that it was executed at the conclusion of the sale mentioned therein— (120).</p>

<p>Appeal from Washington County Court — Hon. C. W. Ballard, Judge.</p>

— Hon. Hubert L. Shattuck, Judge. Appellees (plaintiffs) had judgment below. Defendant (appellant), brings the case here on appeal. June 19, 1866, at Fond du Lac, Wisconsin, Usebas Parent married his niece by the half blood, Mary Rehaume, daughter of his half sister. The marriage was regular and in good faith, but null.

Grant L. Hudson, Judge. Plaintiff in error, defendant below, was charged with violating the statute relating to the sale of liquors on Sunday — § 1346d, Mills’ Stats., Rev. Supp. He pleaded not guilty. The trial was to the court. The testimony established that the saloon named in the information, located at 2400 Larimer Street, in the City and County of Denver, was open on Sunday, and liquor sold therein.

<p>Constitutional Law — Special Assessments of Benefits— The levy of an assessment upon lands, for a benefit occasioned by a public improvement is the exercise of the power to tax. The provisions of Sec. 15 of Article II of the Constitution have no application thereto — (145).</p> <p>Though such assessment is made in a proceeding under the statute of Eminent Domain, and is declared a lien upon the lands not taken, it does not result in depriving the land owner of the damages to- which he is entitled for land taken, nor any part of such damages- — (145).</p> <p>Neither does the fact that what is to be paid to- the land owner for the land taken is raised by a general tax of which, with all other property owners, he must pay his share, have this effect — -(145).</p> <p>The provisions- of the statute, (Mills Stat. Secs. 4419, 4427, Rev. Stat. Secs. 6592, 6600,) are not opposed to the Constitution —(146).</p>

<p>Appeal'from Logan District Court — Hon. H. P. Burke, Judge.</p>

<p>1. Tax Title — Advertisement of Sale — Proof of Publication— An affidavit of the publication of the notice of a tax sale of .'lands, showing no more than that copies of the paper were delivered by mail or by carrier to all regular subscribers in tbe country,-is defective — (152).</p> <p>2. —1—Supplemental Affidavit — Where the affidavit of publication is defective, a supplemental affidavit supplying its defects, though made a)nd filed only the day before the trial of an action in which the tax sale is contested, is admissible and to reject it is error — (154).</p> <p>And where such supplemental affidavit is afterwards contradicted by affidavit of the same person w-ho made it, the court should receive evidence, and determine which affidavit speaks the truth— (155, 156).</p> <p>The supplemental affidavit, secured and filed on the eve of the trial, is not a public record, and 'so above contradiction and impeachment by the same affiant, within the doctrine of Sternterger v. Moffat, 44 Colo. 520 — (156).</p>

<p>Error to Denver District Court — Hon. George W. Allen, Judge.</p>

<p>1. Contracts — Mutual Assent• — Mutual assent is established by an offer of one party, and acceptance by the other; and assent by one party to the offer of the other may consist in words alone, or in both words and acts — (163).</p> <p>Where one party performs the act which the offer of the other contemplates, this is effectual as an acceptance of the offer — (163).</p> <p>2. Counterclaim — For a Tort — The negligent failure to perform a contract affords an action on the contract, and miay found a counterclaim in an action brought upon a different contract— (168, 164).</p> <p>3. --Unliquidated Claim — A claim is not to be rejected as a counterclaim merely because it is unliquidated — (164).</p> <p>The provisions of the code have for their purpose the avoidance of circuity and multiplicity of actions, and should b© liberally construed — (164).</p> <p>4. Partnership — Two, of the Same Partners, constitute in law a single partnership. Either may maintain an action upon a contract made with the other, without an assignment — (164).</p> <p>5. Bailee — for Eire■ — Plaintiff, a merchant in Chicago, in consideration that defendant, a merchant of Colorado, should ■ purchase of him certain goods, and pay an additional consideration, agreed with the latter that he would receive, and care for other goods, purchased by the defendant, from another dealer, and load them in the same car in which the goods purchased of plaintiff should1 be loaded. Held, that plaintiff was a bailee for hire and bound to ordinary diligence — (165).</p> <p>6. Negligence — Ordinary Care, is that degree of care which an ordinarily prudent person would exercise under similar cir* cumstances — (165).</p> <p>The -evidence examined and held to disclose a want of ordinary card on the part of plaintiff, in performing its duty as bailee- — (165, 166).</p>

George W. Allen, Judge. Appellees, plaintiffs below, brought suit against appellant upon eleven different causes of action. The first was for the value of a casket and other goods, labor and care in and about the funeral and burial of one Henry George Brown, deceased, which were sold and performed at the instance of those authorized to bind his estate for such expenses.

<p>1. Appeal — Presumptions—Uncertainties in the record will he resolved im favor of the party successful below; e. g., ais to whether an averment essential to th'e jurisdiction of the court below, appearing by interlineation in the complaint, was therein, when it was originally filed — (172).</p> <p>2. Pleading — Construction—Where a complaint in the county ■court contains the averment required by the statute that the value or amount involved does not exceed $2,000, it is not to be said that it, upon its face, excludes the jurisdiction of that court, even though the statutory averment as to the amount involved is preceded by an ad damnum clause, in $2500 — ¡(178).</p> <p>3. Appeals — Harmless Error — An absolute judgment for money, in an action of claim and delivery, will not be reversed where, upon a proper judgment, the appellant will be chargeable in a larger sum — (174).</p>

George W. Allen, Judge. Under section 1997 Revised Statutes 1908, “Writs of error * * * lie on behalf of the state * * * to review decisions of the trial court in any criminal case upon questions of law arising upon the trial, motions to quash,” and in other specified cases. No decision of the Supreme Court, however, can operate to put a defendant in jeopardy a second time for the same ■offense.

<p>Error to Gunnison District Court — Hon. Sprigg Shackleford, Judge.</p>

<p>Appeal from Larimer District Court — Hon. James E. Garrigues, Judge.</p>

<p>1. Criminal Law — Arraignment—Plea—Where the accused is tried and convicted without ararignment or plea, the judgment must be arrested — (183).</p> <p>The provision of the statute (Mills’ Stat. Sec. 1433, Rev. Stat. Sec. 1956) that no judgment shall be arrested “for any matter not affecting the real merits of the offense charged,” has reference to the information, not to proceedings during the progress of the trial — (184).</p> <p>2. -Arrest of Judgment — Effect—Where a judgment upon a criminal information is arrested for want of a plea by the defendant, he may be afterwards arraigned and required to plead —(185).</p>

<p>X. Mandamus — To Judges of Election — In the interpretation of the ballot by what appears upon its face, the actual count thereof, and the determination of the result, the judges of an election act judicially, and proceeding in good faith, are not controlled by mandamus — (198).</p> <p>But their duty to count the ballots', and afterward make return of the result is entirely ministerial, and mandamus will lie to compel its performance — (19'3).</p> <p>2. -Answer — Wh'ere upon mandamus against -two of the judges of an election, to compel them to certify to the result, the answer by its silence admitted the counting of the ballots’ by th'e three judges, and that if the result, as so ascertained, had been certified, it would have shown the election of the petitioner, an averment that only a certain number of votes were cast, and that upon opening the ballot box after the close of the election a much greater number of ballots was found therein, in the exact similitude of the official ballot, was held to present no defense — (200).</p> <p>3. -Adjournment of the Board — Effect—The adjournment of the judges, and their separation, is no answer to a mandamus to compel them to return, the result o-f their count of the ballots; •they may be compelled to re-assemble — (199).</p> <p>4. -Judgment — Where the pleading® show that, complying with the law, only a certain return can be made, it is proper to command the judges to sign and certify such return — (200). ’</p> <p>5. -Parties — A defect of parties which is injurious only to the petitioner does not avail the respondent — (200).</p> <p>6. Appeal — Questions Not. Presented Below — The court will not entertain questions which were waived or not presented in the court below — (201).</p>

<p>1. Criminal Law — False Pretenses — Mere non-disclosure is not a pretense, even though if disclosure had been made it would have deterred the prosecutor from parting with his money- — (203).</p> <p>The sale of chattel® which are subject to an existing mortgage, without informing the purchaser of the incumbrance, is not a false pretense within the statute (Mills Start. Secs. 1378, 1379, Rev. Stat. Secs. 1848, 1849), even- though the title be warranted ¡by the seller — • (2i0 3).</p> <p>2. -Pretense Plot Relied On- — A false pretense not relied upon is not within the statute — -(204).</p> <p>3. -Other Grimes — That the accused violated the statute prohibiting the sale of mortgaged chattels without advising the purchaser of the mortgage (Mills Start. Sec. 392, Rev. Start. Sec. 524), has no relevance to an information charging the obtaining of the money by false pretenses- — (203).</p>

<p>Error to Denver District Court — Hon. George W. Allen, Judge.</p>

<p>Error to Denver District Court — Hon. Harry C. Biddle, Judge.</p>

<p>Error to Denver District Court — :Hon. John I. Mullins, Judge.</p>

<p>Appeal from Denver District Court — Hon. P. L, Palmer, Judge.</p>

<p>Appeal from Teller District Court — Hon. Louis W. Cunningham, Judge.</p>

<p>1. Evidence — Bes Gestae, anay be broadly defined as something incidental to the main fact and explanatory of it, including acts and words so closely connected with it as to constitute part of it, and without a knowledge of which the main fact may not be properly understood — events themselves speaking through the instinctive acts and words of the participants in the transaction, growing out of the main facts, and contemporaneous with it. — (254).</p> <p>The declaration of the conductor of a street car made in the act of assisting to her feet a lady who had just been thrown from his car, that “the accident was not due to his fault, that the motorman started without a signal”; and his question to another passenger “Did you notice that the car started before I rang?” were held clearly admissible as verbal acts, part of the transaction, and serving to illustrate, explain and interpret it— (¿58).</p> <p>2. Appeals — Harmless Error — The refusal of an instruction calling upon the jury to bear in mind, in considering the evidence of the plaintiff, her direct interest in the result of the action, is harmless, where a general instruction is given requiring that, as to all witnesses, the jury should among other things, take into account their interest, if any, in the result of the suit —(259).</p> <p>Where the charge of the court as a whole is comprehensive, correct and fair, possible technical objections to segregated portions of it will not reverse — (259).</p> <p>3. Verdict — on Conflicting Evidence — Is conclusive where there is sufficient to support it — (260).</p>

<p>1. Notic>o — False hut Not Misleading — A statement in. the advertisement of the sale of public lands which though false can mislead no one, will be disregarded — (267).</p> <p>2. Evidence — Presumptions—It is presumed until the contrary appears that public officers acting officially perform their duties and observe the law — (2,67, 26'8).</p> <p>3. State Land Boaed — Evidence of Their Action — The action of the state land board in directing a sale of public school lands to be made at a place other than the state capital, as permitted by Secs. 12, 15 of the Act of April 2, 1887 (Laws 1887, 308), need not be made matter of record — (266).</p> <p>The fact that the board approved the sale, though made at a distance from the state capital, and issued a certificate of purchase thereon, was held conclusive that the- sale was directed to -be made as it was in fact made — (2660-</p> <p>4. -Sale of School Lands by County Superintendent— The sale of school lands, ordered by the State Board of Land Commissioners, and advertised and mad-a hy the County Superintendent of Schools, merely as auctioneer, and professing to act for and hy authority of the state board, was sustained, no fraud, collusion o.r sacrifice of the lan-di appearing, though, so far as appeared, no member of the board was present thereat — (268).</p> <p>5. -Sale of Irregular Parcels — The provision of the statute, Act of April 2, 1887 (Laws 1887, 328, Sec. 14) that all sales of state 1-and.s shall be made “in legal subdivisions of not more than 160 acres” has- no application to the sale of an irregular parcel lying in two different subdivisions, not exceeding five acres in area — (268, -269).</p> <p>6. Subdivision Into Lots and Blochs — Sec. 13 of the Statute cited is -permissive merely — (268).</p> <p>7. -Sale Without Survey — A state patent will not be annulled merely because the sale of the lands was made without a survey, where there is no evidence that a survey was necessary, or that the area was greater than that for which it was sold — (.269).</p> <p>The State Board should survey the public land® before the sale thereof, wherever this is necessary; hut they have a discretion in the premises- — (269).</p> <p>8. Evidence — Action of Executive Boards — Where no statute requires it the action of -a hoard need not he evidenced by record — (266).</p> <p>9. Judicial Action — Grounds Of — A court can act only upon what is alleged and proven. They are not at liberty to go out of the record and indulge in speculation — -(269, 270).</p>

Hubert L. Shattuck, Judge. Edward C. Smith was tried, convicted and sentenced to pay a fine in the district court of the city and county of Denver, on an information charging: “Practicing medicine without a license.” It contains three counts: The first, that he unlawfully practiced medicine by holding himself out to the public as being engaged in the diagnosis and'treatment of diseases and injuries of human beings, without a license; the second, that he unlawfully practiced…

James Owen, Judge. Plaintiff alleges, that March 19, 1906, he worked for defendant on a mining claim in Teller county, and was sent into a drift on the second level, where there had theretofore been a cave-in; that defendant knew it had occurred several months before, but did nothing to prevent further cave-ins or injury in the drift; that no timbering had been placed therein, and the law had1 not been complied with requiring- mines to be made safe; that the mine was then in…

<p>1. Continuance — Absent Witness — Motion—Affidavit—A motion for the continuance of a cause over the term, on account of the absence of witnesses, the affidavit not showing that their attendance cannot, by diligence be procured in the pending teirm, may be denied on this ground — (291).</p> <p>The affidavit must show the testimioy which it is expected that the absent witness will give, so that the court may jud'ge of its materiality. The statement that it is “very material” is a mere conclusion — (.291).</p> <p>2. -Discretionary — A motion for the continuance of a cause is in a large degree addressed to the discretion of the court — (290).</p> <p>The action had been commenced in September. In June following it was set down for trial a month later. Of this the defendant had seasonable notice. Shortly before the trial defendant’s attorney was suddenly called away upon important- affairs, long pending, and left the cause in- charge of another attorney. On the day appointed for the trial the defendant interposed an application for a continuance on the ground1 of the absence of •two witnesses. The affidavit was sworn by his private secretary, the defendant himself not being present. As to one of the witnesses the affidavit stated that he had been suddenly called out of the state, but it was not shown that his deposition could not have been taken, nor that he would1 not return during the pending term, nor what testimony he could giVe. As to the other witness it stated that he was an engineer in the employment of a railroad company somewhere upon the line of its railroad. The only effort which was shown! to procure his testimony was- to address a letter to him, through the railroad company, to which no answer had been received. The motion being denied the attorney retired, from the cause and a verdict was rendered in favor of the plaintiff.</p> <p>Held, that inasmuch as to one witness the materiality of his testimony was not shown, nor as to the other diligence in' procuring his testimony, it was not to be said' that the court abused its discretion in denying the motion — (290-292).</p> <p>3. Vacating Judgment — Mistalce—Surprise, Excusable Neglect — A judgment is not to be vacated merely because a meritorious defense is shown. In, the same case, on motion to vacate the judgment, it was held that inasmuch as the defendant knew nearly a month in advance that the cause was set for trial, his absence was not shown to be due to any mistake, surprise, inadvertence or excusable neglect; that as his private secretary who knew more of the case than defendant himself was present' at the trial, and another witness was accessible, who had much information in regard to the plaintiff’s demand, it was an error on the part of the secretary and the attorney to retire from the case; that their action in the premises must be regarded as deliberate; and that none of the statutory grounds appearing (Rev. Code, Sec. 81) the motion! to vacate the judgment was properly denied— (291-293).</p>

<p>Error to Pueblo County Court — Hon. Frank G. Mirick, Judge.</p>

<p>Appeal from ■ Clear Creek District Court^-TLon. Flor Ashbaugh, Judge.</p>

<p>1. . Judgment Vacated — Reinstatement on Error — A judgment given in -the district court and thereafterwards vacated, upon alleged cause shown, within! the time allowed by- law, will not, no abuse of discretion being shown, be reinstated on error brought — -(308).</p> <p>2. Foreign Judgment — By Confession — A judgment entered in. a court of general jurisdiction of another state, by the clerk of-that court; in vacation-, upon a promisssory note with a power of attorney appended authorizing such confession, the note being executed ini the. foreign state and payable there, and the power of attorney being valid, and the judgment authorized by the laws of that -state, must, when a copy of the record authenticated according to the act of congresses presented in the courts of Colorado, be accorded full faith and credit, even, though- the défendant was a resident of Colorado and was not served with the process — (309, 310).</p>

<p>Appeal from Denver District Court — Hon. Greeley W. Whitford, Judge.</p>

<p>1. Juky — Trial by — Equity Causes — In an equity cause neither party is entitled to a trial by jury. If in such a cause a jury is empanneiled, the court may of its own motion, after evidence has been heard, discharge the jury and make its own finding — (316).</p> <p>2. Mechanics Liens — A Proceeding in Equity — An action to foreclose a mechanics lien is equitable in its nature and controlled by the rules of chancery practice — (316).</p> <p>3. -Cross Complaint Demanding Damages, for the violation of the contract upon which plaintiff’s action is grounded does not change the character of the action to one at law — -(316).</p> <p>4. Appeals — Harmless Error — The admissibility of evidence for the plaintiff in a cause tried without a jury will not be considered on an appeal by the defendant, where, irrespective of such evidence, sufficient is found in the record to support the judgment — (316).</p>

<p>1. Water Rights — Proceeding to Adjudicate Priorities — The proceeding under the statute (Rev. Stat. c. 72 Art. IV) to adjudicate priorities, is a special proceeding, and not a civil action under the code — 0319).</p> <p>2. -Appeals — Must Conform to Statute — ‘One appealing from an order made in such proceeeding must follow the provisions of the statute even though his complaint is directed not to any award of priority to the use of water, but to a clause of the ctecree assuming to' establish, in. the owner of a oentain ditch a -way over private lands of the appellant — (319, 320).</p> <p>An appeal attempted without reference to these provisions, hut under the provisions of the code must he dismissed — ('321).</p>

<p>Judgment of district court affirmed on the authority of Hackett v. Larimer and Weld Co., 48 Colo. 178.</p>

<p>1. ( onstitutional Law — Requirements in Legislation — The section of the constitution relating to the title of bills (Sec. 21 Art. V.) must receive a reasonable construction. If the bill treats of but one general subject, and that is expressed in the title, this is sufficient — '(.326).</p> <p>The penalties prescribed for the violation of a statute are germane to so much of it as defines and denounces the crime, and need not be referred to in the title; but a title which by general words refers to the crime, and then to the punishment thereof, as by the phrase “and providing punishments,” etc., is not within the prohibition of the constitution — (326).</p> <p>The title “An act concerning certain forms of prostitution and providing punishments for persons encouraging prostitution in violation of this act” -(Laws 1909 c. 196) contains but one subject and is not open to objection — (328).</p> <p>2. Criminal Law — Consolidation of Indictments — Two indictments were pending against different defendants for the violation of the same section of the same statute; the crimes charged were committed at the same time and place, as disclosed by the record, and the facts as to the two were intermingled the one with the other. They were properly consolidated under the statute (itev. Stat. sec. 1953, Mills Stat. sec. 1452') — (329).</p> <p>3. Evidence — Bias of Witness — An accused person is entitled to show an unfriendly disposition on the part of a witness tor the prosecution, and threats made by such witness against him. The exclusion of such evidence is error. • That the witness whose animus is so in question is declared by the trial judge, in refusing a new trial, to have disclosed by her acts and demeanor on the stand, the malignity attributed to her is not sufficient, on error brought, to warrant affirmation of the conviction. The demeanor of the witness cannot be presented in the record, and it is not to be said that the jurors and the trial judge were of the same mind as to the matter — (330. 381).</p> <p>The error was aggravated by afterwards permitting the prosecution to show the friendly disposition towards the accused of a .witness sworn in his behalf — '(382).</p> <p>4. Criminal Law — Statute Construed — The statute (Laws 1909 c. 196 Sec. 2) declares that “any male person * * * who shall engage or assist in operating or managing” any house, &c„ for the purpose of carrying on prostitution, shall be deemed guilty of felony. Held, that in- order to a conviction it must be shown that the accused had control of and conducted, or assisted in the management of the affairs of the house, so- as to be in some manner responsible for the immoral practices there carried on; or must at least have been so in control as .to be able to bring about, or assist in bringing about, such immoral practices.; that to merely aid, abet, advise, or encourage another in $he conduct of the house is not within the statute, and that to iso construe it was to read into it the descriptive elements of an accessory, and so enlarge it by construction.</p> <p>The statute declared that “any person * * * who shall knowingly live on or be supported in whole or in part by the money or other valuable consideration realized, procured or earned by any female person through the prostitution of any other female” shall be deemed guilty of felony.</p> <p>Held, that there could be no conviction where the proceeds of prostitution were received by the accused, knowingly, from the keeper of a brothel to pay a debt due him, or redeem a pledge for her, or where he had received such moneys, received by the brothel-keeper as the proceeds of another woman’s prostitution, without anything done, or consideration parted with by the brothel-keeper, nor where the accused had received such proceeds of prostitution for a different purpose, and had after-wards applied a part of it to-his own maintenance — (l3®4-33(7).</p> <p>5. - — —Instructions—In -the trial of one charged as a principal the -statutory provisions as to accessories have no application, and the instruction should he limited accordingly — (3©8, 339).</p>

<p>Appeal from Logan District Court — Hon. H. P. Burke, Judge.</p>

<p>Error to Denver District Court — Hon. Carlton M. Bliss, Judge.</p>

<p>Error to Denver Juvenile Court — Hon. W. G. Alexander, Judge.</p>

<p>Whit of Error- — Discontinuance■—Bending a writ of error, am event occurs which, makes a determination of the cause unnecessary, or renders it impossible to grant effectual relief. The writ of error may he dismissed.</p>

<p>1. Instructions — Not Based on the Evidence — Instructions presenting a theory which there is no evidence to sustain are properly refused — (357, -358).</p> <p>2. Evidence — Relevancy—Plaintiffs, doing business in Denver, drew a draft upon another house of the same name, hut different membership,’ in Kansas City, in' favor of defendant, and the Kansas City house paid it. Plaintiff sued- to recover the amount, claiming that it was a loan to defendant. Defendant resisted the action on the ground that, in drawing the draft, plaintiffs were acting as agents of the drawees. Evidence of the agency, and the ratification of the act was produced. Held, that, to sustain their contention it was proper to permit defendants to prove a custom that a representative should draw drafts on his principal — (358).</p> <p>The evidence examined and held to justify a verdict for defendants— (.357).</p>

<p>1. Negotiable Papek — Endorsee Without Consideration — Defenses — In an action upon an accepted bill of exchange, by endorsee, an answer showing fraud of the drawer and payee, in procuring the acceptance, and that the endorsee is not a holder in good faith, but a mere agent or representative o-f the drawer, lending its name’to assist' in the consummation of the fraud, states a defense — (96^).</p> <p>2. Evidence — Burden of Proof — Under Rev. Stat. sec. 4518, the drawer and payee of an acceptance obtained by his fraud, acquires no title, and under Rev. Stat. sec. 4522, the burden is upon 'the endorsee to show that he acquired the paper before maturity, in'good faith, and for value — '(3'62).</p> <p>3. -Competency — In an action upon a bill of exchange given for goods sold, the plaintiff being an endorsee, and fraud in procuring the acceptance and that plaintiff is a mere agent and representative of the payee, being pleaded, false representation of the drawer’s agent inducing the sale are admissible— C 3 6*3).</p> <p>All the details of the transaction may be put in evidence as pertinent to the allegation of fraud — (363).</p> <p>4. Contract — Rescission,—Merchant sued upon a bill of exchange given for goods which he was induced to purchase, by false representations, offers to allow judgment for the return of the goods remaining unsold, and for the amount obtained by the sale of such part' of the goods as has been sold. Held, a sufficient recission — (363)..</p>

Harry P. Gamble, Judge. Hon. Junius Henderson was elected county judge of Boulder county for the term of four years beginning in January, 1905.

<p>1. Chattel Mortgage — Extension—The period prescribed by the phrase “within, thirty days after the maturity of the last installment of the indebtedness” in Sec. 520 Rev. Stat., begins with the day succeeding the day of maturity. An extension granted on the day of maturity is premature. A purchaser of the mortgaged chattels from the mortgagor, after the lapse of thirty days from the maturity of the mortgage indebtedness, takes free of the lien of the mortgage, notwithstanding such attempted extension — (370, 371).</p> <p>2. Statutes' — Construction—Every statute must be read as a whole, and its meaning gathered from all its parts — ('370).</p> <p>An attempt to extend, pursuant to the statute, the right given by statute in mortgaged chattels remaining in possession of the mortgagor, must strictly pursue the statute — (372).</p> <p>3. Words and Phrases — “After the maturity of the last installment” of a debt, prescribes a period beginning with the day following that on wmch the debt matures — (370).</p>

<p>1. Statute of Frauds — Part Performance — Plaintiff solicited defendant to quit his ranch, move to- tow.ni, take possession of, furnish, and conduct a hotel on certain premises, promising that if he would do so, he, plaintiff, would execute to him a lease of the hotel at a specified rent for ' a specified term of years. Defendant complied with this request, removed from his ranch, assumed possession of and furnished the hotel, and paid rentals monthly for several months. Held, a sufficient part performance to entitle defendant to specific performance of the cntract lease— (375).</p> <p>2. Wrongful Detainer — Equitable Defenses — Under the statute, (Rev. Stat. sec. 2612, 2603, cl. 6,) equitable defenses may be interposed in the action of wrongful detainer — (375, 376).</p> <p>3. Specific Performance, of a verbal agreement to execute a lease of lands can net be had in an action for the wrongful detainer of the lands — (®75).</p>

<p>1. Pleadings — Amendment—The court should he liberal in allowing amendments, in the interest of justice; hut the matter lies in the discretion of the trial court, and its action will not be review unless an abuse of the discretion appears — (379).</p> <p>2. -Cause Shown — Where plaintiff at the conclusion of the trial below applies for leave to amend his complaint so as to abandon material allegations, but «hows no cause for the application, and the application is denied, no court of review can determine that there was an abuse of discretion — (380).</p> <p>3. ——Practice—Motion to Strihe Out Amendment — Where an amended complaint is filed, without opportunity to defendant to examine it in advance, and state his objections to it, a motion to strike is proper — (380, 381).</p>

<p>Death — Actions for Negligence Resulting in — Statute Construed■ — iThe station agent of a railroad company charged- with the duty to communicate to the conductor and engineer of the several trains the orders of the train dispatcher as to where they are to pass other trains, is managing the -trains, within the meaning of Mills Stat. Sec. 1508 (Rev.-Stat. Sec. 2056). If hy his negligent failure to deliver an- order, a collision occurs, anid the death of a passenger results, the railway company is liable.</p>

<p>Contracts- — Construed—A corporation publishing certain newspapers leased a carrier’s delivery route to the defendant for a term of years, agreeing to deliver to him a number of papers sufficient to supply all subscribers on the route, amid the lessee agreeing to -deliver them. The lease was in writing. One clause of it provided- that on Monday of each week defendant should pay a certain rate for each of the different newspapers. Held, an absolute -sale of the newspapers, the obligation to'pay not depending on the carrier’s ability to collect, and this interpretation of the -clause i-n- question was held to be fortified by other clauses requiring the carrier to investigate for himself, and determine -the propriety of accepting subscriptions which might be offered, and that the carrier “shall be charged for the exact number of papers his route calls for.” Held, further, that this result is not qualified by a clause providing that if the agreement should be cancelled the carrier should “repay to the corporation all moneys collected in advance of the day of the cancellation,” and that the corporation reserved the right “to collect the moneys theny owing” to the carrier — (38-8-3-94).</p> <p>2. —i—Guarantor or Surety — A corporation publishing certain newspapers executed to Doolittle a written lease of a certain carrier’s route, in several clauses, specifying the obligations and liabilities of each party.</p> <p>At the foot of the paper, under the title, “Guarantee,” was a writing subscribed by Doolittle and two others, whereby it was provided that in consideration of the lease the three subscribers “guarantee and obligate themselves” to the corporation, that Doolittle “shall .faithfully perform each and all of the terms of the- above contract, and that in case of his failure, the other subscribers, upon demand, and the presentation of an itemized statement, &c., will pay to the corporation “all damages in full,” but limiting the liability of the three subscribers, “as sureties under this contract,” to a sum specified. Held, that inasmuch as the contract of leasing, and the supplemental undertaking of the three were made at the same time, upon a single consideration, that the latter was executed by Doolittle as well as'by the others, that the word surety appears, as well as the word guarantee, that all of the parties subscribed the later agreement, and all thereby obligate themselves, absolutely, to pay at a fixed time, without reference to the solvency of Doolittle, the supplemental agreement must be regarded as one of suretyship, and not of guarantee; that the subscribers were liable severally as well as jointly; and that the failure to serve a statement of the damages upon one of the sureties did not affect the liability of the other — (394-397).</p> <p>3. Maxims — The law does not require unreasonable or impossible things— (398).</p>

Hubert L. Shattuck, Judge. Plaintiff in error brought suit to recover from defendants compensation at the rate of 12 1-2 cents per acre for a sale he claimed to have effected of eighteen sections of land in the vicinity of Byers. At the conclusion of the testimony, the court, on motion of defendants, directed the jury to return a verdict in their favor.

<p>1. Inheritance Tax — Appointment of Appraisers — Under Rev. Stat. sec. 5561, where one appointed to appraise the -estate of a decedent, in o-rder to -determine the inheritance tax, has made an incomplete and unsatisfactory report, the county court has jurisdiction to- remove -such appraiser and appoint another in- his stead, because otherwise the first appointee by returning inadequate reports might frustrate or interminably delay the proceedings. The question is for that court and- its action is not a ground of complaint by the heirs or administrator of the decedent — (408, 40-9).</p> <p>2. Certiorari — When the Writ Lies — The appraiser of an intestate’s estate, under the inheritance tax law, made an unsatisfactory report. The county court of its o-wn motion vacated the appointment of such appraiser and appointed another.</p> <p>Certiorari from the district court, upon petition of the administrator and heirs, to review the last appointment should be quashed on motion — :(4T2). ,</p>

<p>Error to El Paso District Court — Hon. W. S. Morris, Judge. .</p>

Sprigg Shackleford, Judge. November 21, 1904, The Taylor-Moore Construction Company entered into a contract with the-United States to construct the Gunnison tunnel.

<p>Landlord and Tenant — Tenant Holding Over — Acceptance'of Rent — Effect—If the tenant for a term of years holds over after the expiration of his term the landlord may eject him as a trespasser, or may waive the wrong and treat him as a tenant, at his election, either for years or from month to month. The character of the tenancy depends on the will of the landlord, and not upon' that' of the tenant; but if the landlord would create a tenancy other than that from year to year his purpose in that .behalf mus.t be declared at the time — (4®6).</p> <p>An intention not expressed is without effect — (43©).</p>

<p>1. Damages — Proximate and Remote — Parties are liable only for the natural and proximate results of their acts, not for those which are remote and could not reasonably have been anticipated — (439). . ,</p> <p>2. Proximate Cause — When for the Court — Where the facts are undisputed and susceptible of but,one inference, what is the proximate cause of any result is for the court — (439).</p> <p>The defendant induced the plaintiff’s servant in charge of plaintiff’s premises to leave-them, and go to defendant’s assistance. During the servant’s absence a fire was kindléd upon or near to plaintiff’s premises., and was carried by the wind over his field, destroying the crop. Held, that neither the kindling of the fire' nor the rising of the wind was- occasioned by the servant's, absence, and neither was the natural and legitimate sequence of such absence — (439).</p>

<p>1. Constitutional Law — Police Power — A statute requiring that “all abandoned mine shafts, pits, or other excavations, endangering the life of man or beast, shall be securely covered or fenced” (Rev. State, sec. 4297) is a legitimate exercise of the police power — (44>6).</p> <p>2. Statutes — Construed—A statute requiring that “all abandoned mine shafts, pits and other excavations endangering the life of man or beast shall be securely covered or fenced,” is not so uncertain in its terms as to be incapable of enforcement. The owner of the mining claim having excavated the shaft is under duty to enclose it — '(447).</p> <p>And the statute extends not merely to such workings as are abandoned, in the sense that no intention to return to it or use it in the future, is entertained, but to those workings which are not in use for the operation of the mine from the surface — (447).</p> <p>And it applies as well to workings abandoned prior to its enactment, as to those subsequently abandoned — (448).</p> <p>It was intended to afford protection to the public generally, and extends even to the child of a mere licensee of the owner who resides upon the mining claim on which the shaft is situated— (447, 448).</p> <p>And the statute requires, not merely that such a shaft shall be covered at the time of quitting it, but that reasonable care be exercised thereafter to maintain. the cover or enclosure in reasonably safe condition — (450).</p> <p>3. Negligence — Reasonable Care, is that degree of care which an ordinarily prudent person would exercise under the same or similar circumstances, taking into account the dangers which are to be reasonably apprehended — (449).</p> <p>4. --Violation of Statute — The failure to perform a duty</p> <p>imposed by statute for the protection of the public is negligence per se — (449).</p> <p>5. -■When for the Jury — When the evidence is conflicting or different intelligent minds may honestly draw different conclusions therefrom, the question of negligence or contributory negligence must be left to the jury — (449).</p> <p>A shaft excavated upon defendant’s mining claim was abandoned in 1902, and was then securely covered. It was two hundred feet in depth. In 1904 boards were laid crosswise of those which were put down in 1902, but those so originally laid were not examined. In 1906 an employe was-instructed to recover all the shafts of the company, and laid new boards in place of those which were missing. He made no examination of the boards which were in place. No inspection was afterward made to determina whether this servant had complied with the order. New stringers or timbers were never put in. Within a radius of four hundred feet from the shafts were fifteen or sixteen houses occupied by families with children, to the number of about twenty, ranging from two to sixteen years of age. These children often played -upon the dump of the shaft, and the superintendent of defendant had notice of this. In July, 1907. the plaintiff’s son, a boy of nine years, fell into the shaft and was killed. The evidence tended to show that some of the boards were loose, some were warped and corroded by the dry rot, and that only one of them was sound. The stringers supporting them were so decayed that they would not hold a nail. It only required a slight jar to disturb the boards, and the child probably jumped or stepped upon, a board which broke under him, or upon one which was loose. It was held a case lor the jury — (4’49-45-2).</p> <p>6. -In the Care of Children — A parent is required to exercise for the protection of his minor child against known dangers, or dangers whiqh by reasonable care would have been known, that degree of care which reasonably prudent persons would have exercised in the same or like circumstances. A child of nine years was sent by the mother to the close vicinity of an abandoned shaft, one board of the cover of which was loose. The parents had previously sent an older son to repair it, and he had attempted to nail down one of the boards which he found loose. The father shortly afterwards examined the cover and thought it secure. Later the mine owner made some repairs, and there was no evidence that the parents after this had notice that the cover was unsafe. Held, that whether the parents were guilty of negligence in the care of the child was a question to be left to the jury — (455).</p> <p>7. Contributory Negligence — Of Infants — A minor non sici juris is required to exercise only such care as may reasonably be expected from one of his agei, experience and intelligence. A child of nine years is presumptively non .sui juris; hut the question is one of fact to be determined by all the circumstances of the case. If there is a fair doubt as to the child’s capacity the question should be submitted to the jury — (453, 454).</p> <p>8. Pleading ■ — • Certainty ■— Things Implied From Things Averred — -What can be reasonably inferred from the averments of a pleading need not be expressly alleged. Action for the death of a child, by its fall into an abandoned shaft, alleged not to be sufficiently covered as required by the statute. The complaint named as defendant “The El Paso Consolidated Gold Mining Company” and averred that the shaft was situated upon the Australia Lode Mining Claim, in the Cripple Creek Mining District. Held, that inasmuch as It was apparent from the corporate name that the defendant was engaged in mining for gold bearing ores, that the word “lode” is well understood to apply to veins of metallic ore, the complaint sufficiently disclosed that the shaft in question was upon a metalliferous mine — (445, 446).</p> <p>9. Evidence — Relevancy—Action by the parent for the death of a minor child by his falling into an abandoned shaft the cover of which was defective. Evidence that the mother has. warned the child not to go upon the cover of the shaft was lield relevant to the question of whether the parents had been negligent in caring for the child — (455).</p>

H. C. Riddle, Judge. Plaintiff in error brought suit, the purpose of which was to enjoin the defendants from- collecting, or attempting to collect, a tax assessed upon its personal property for the year 1908.

<p>Error to Denver District Court — Hon. Greeley W. Whitford, Judge.</p>

<p>Error to Bent District Court — Hon. Henry Hunter, Judge.</p>

<p>1. Default — Excusable Neglect. — The provisions of the code for the vacation of judgments by default are to be liberally construed. The design of the statute is to call into exercise the equitable powers ofthe court. An action was instituted in El Paso County against husband and wife, upon certain joint promissory notes. Service was made upon both defendants by delivery to the wife of a copy of the summons and complaint, at the joint residence in Fremont County. The answer was due on the 17th of August. The wife had no knowledge of the various transactions of which the promissory notes were a part, nor of what defense might be made to the action. The husband was then absent in the City of New York but his return was expected on or about the 10th of August. After this date the wife was informed that he would not return for a considerable time, and on the 13th she transmitted the papers to him, informing him of the service. The husbánd upon receiving the copy mailed.them by special delivery letter to his attorney in Denver, instructing him to enter an appearance. The attorney failed to receive the papers until late in the afternoon of the 19th. A default was entered on the 18th, and on the 25th of August final judgment against both defendants for over Eleven Thousand Dollars. The husband upon being informed of the situation immediately returned to Colorado and an application by both defendants, to vacate the default and for leave to answer, was promptly interposed, supported by affidavits showing the fapts, and exhibiting a meritorious defense. Held that in view of the manner of the service, the husband’s absence, the short delay in defendant’s appearance and that plaintiff was not prejudiced by it the neglect was excused as to the husband — (475-479).</p> <p>As to the wife it was held that in view of her inexperience in business, her ignorance of the defense, -that she relied upon her husband in all business matters, that at the time of receiving the summons and complaint she justly expected her husband’s speedy return, that her conduct was not different from what-might be expected from any wife similarly situated, and considering also the large amount of the judgment, her default also was to be attributed to excusable neglpct and vacated— (479, 480).</p> <p>2. -Discretion of the Court. — The discretion of the court in determining an application to vacate a default is not a capricious or abitrary discretion, but is controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve, and not to impede or defeat, the ends of justice — (486, 487).</p> <p>Whenever the court of review, upon examination of the facts, is convinced that the action of the court below, in such case, was not in conformity with the spirit of the law its single duty is to vacate the erroneous judgment — (487).</p> <p>3. ---Meritorious Defense — To vacate a default a mere showing of excusable neglect is not sufficient.</p> <p>A defense to the action prima facie meritorious, must also appear.</p> <p>And it must be stated with such fullness and particularity that the court can see that it is substantial, not technical, meritorious and not frivolous — -(480).</p> <p>A defense to part of the cause of action is sufficient— (480).</p> <p>If it is made to appear that in justice to the defendant he is entitled to be heard this suffices. The case made held to be sufficient.</p> <p>4. --Conditions — A judgment by default being reversed the cause was remanded with directions to the lower court to allow an answer to be filed witbin a reasonable time to be fixed by that court,' and upon payment by defendants of all costs which had accrued in that court, to the day upon which the defendant’s motion to vacate the judgment had been denied in that court.</p>

<p>Appeal from Otero District Court — Hon. C. S„ Essex, Judge.</p>

<p>The errors assigned relating only to the evidence, and that being found sufficient the judgment was affirmed.</p>

<p>Error to Larimer County Court — Hon. Fred W. Stover, Judge.</p>

<p>■Judgment affirmed on tlie authority of Epley v. The People, post 501.</p>

<p>Error to Larimer ■ County Court — Hon. Feed W. Stover, Judge. •</p>

<p>Error to Pueblo District Court — Hon N. WALTER Dixon, Judge. '</p>

<p>1. Passenger Carrier — Non-Transfer able Tickets — A railway company may lawfully issue tickets which are not transferable by the holder. The condition which prohibits transfei is a legal contract, and the railway company is under no obligation to carry a person presenting such ticket, unless he is in fact the original purchaser — (514).</p> <p>Such tickets are not property in the hands of the purchaser in such sense that they can be sold. Dealing therein is a fraud both Upon the railway and the traveling public and cannot be made a legitimate business — (515).</p> <p>A railroad ticket is a mere token to show that the person properly in possession of it has paid his fare. If transferred in violation of its terms, it is no longer property in an sense, but as much under the ban of the law as counterfeit money.</p> <p>2. Injunction — Protection of a Lawful Business Against Unlawful Interference — One who prosecutes a lawful business has a property therein, and is entitled to protection against unlawful interference therewith — -(515).</p> <p>A railroad company had for a long time, issued tickets entitling the holder to proceed to destination and return, for a single fare. These .tickets were expressly declared, upon the face thereof to be non-transferable.</p> <p>The defendants were engaged in the purchase of the portion of these tickets entitling the holder to return, and the sale thereof to strangers, whom they instructed to falsely impersonate the original purchaser. They declared their purpose to continue in this course of illicit dealing. By .this abuse of the ticket, practically impossible to detect, and by the frauds so habitually practiced, the railway company was deprived of enormous gains to which it was entitled. Held, that on the ground of constantly recurring wrong, the avoidance of a multiplicity of actions, and irreparable injury, a clear case for injunctive relief was presented — (521, 522).</p> <p>3; . -Estoppel — Connivance—That the plaintiff had on previous occasions sold like tickets to the defendants and connived at the sale thereof by defendants to others was held no bar to the relief prayed, each sale of such non-transferable tickets being a new and independent wrong, distinct from former transactions— (522, 526).</p> <p>4. -Estoppel Toy Conduct — That the railroad company had for a long time patiently suffered the wrongful conduct of defendants, no evidence of good faith on the part of defendants being given, and it not appearing that defendants conduct had in any manner been changed, or that defendants had been in any degree misled by anything done or omitted by the railroad company, was held no estoppel.</p> <p>The doctrine of equitable estoppel is never available to sustain crime, fraud, or active misconduct of any character.</p> <p>No defense to the plaintiff’s action was presented by the doctrine of laches and acquiescence — (526-534).</p> <p>5. -Preliminary — Affidavit—If the defendant against whom a preliminary injunction has been issued without notice, no emergency existing, would avail himself of the final proviso of sec. 148 of the code as amended by the act of 1903 (Laws 1903, c. 117, Rev. Code sec. 164), he must move in the trial court. Failing in this he will not be heard to make the objection in the court of review — (543).</p> <p>The record held to show an emergency, within the meaning of the statute entitling plaintiff to a preliminary injunction without notice — (544).</p> <p>6. Equity — Maxims—Coming With Clean Hands — To deprive the complaining party of equitable relief evil practice in' the very matter in respect to which redress is sought must be shown. Equity does not repel all sinners — (525).</p> <p>7. Corporations — Foreign—License Tax — Under the decision of the supreme court of the United -States in American Co. v. Colorado, 204 U. S. .103, the license tax imposed by the Revenue Act of 1902 (Laws 1902 c. 3, sec.. 65), cannot be exacted from a corporation, which, before its enactment, had paid the entrance tax requested by those entering legislation,'and secured a license to do business in this state — (542).</p> <p>8. Change of Venue — Sections 25 and 25a of Mills’ Code (Rev. Code secs. 25 and 26) refer exclusively to actions in rein,' where specifis property is directly affected. An action' to 'restrain interference with the business of a railway company *by unlawful dealing in its non-transferable tickets is a transitory action in personam. The sections quoted have no reference to such action — -(535).</p> <p>9. ' -Waiver of the Motion — An. application for the. change of the venue must be made as soon as the moving party has knowledge of'the facts which entitle him to the change: ■ A general appearance and pleading to the merits is a waiver -of the' rights — (541, 542).</p>

<p>Error to Logan District Court — Hon. E. E. Armour, Judge.</p>

<p>1. Master and Servant — Duty of Master as to Place of Work — One operating a lode mine must use reasonable care to see that the lagging upon which the miner may 'be required to walk, in going about the mine, is in safe condition. He is liable in damages for injuries to an employe occasioned by any defect in the material or construction thereof which might have 'been avoided by the exercise of ordinary care. The facts examined and the case held not' to be within the exception which controls where the servant is employed to make a dangerous place safe — (557, 558).</p> <p>2. -Fice Principal — Knowledge on) the part of the agent who timbers the mine, is the knowledge of the mine owner. 'If defective or unsuitable timber is used, and by reason of this defect an injury afterwards occurs to a miner, the master is not exonerated by the claim that at the time of the injury he had no knowledge of the condition' of the structure — (557, 558).</p> <p>3. -Non-Delegable Duties of Master — The obligation of the master to use reasonable care in respect of the appliances furnished for the use of the servant cannot be delegated, so as to absolve the master from responsibility for negligence in this regard — (561).</p> <p>4. -Servant’s Assumption of Risk — The servant does not assume extraordinary risks occasioned by the master’s negligence, unless the danger is an open and visible one, or the servant has knowledge of it — (561).</p> <p>5. • -Contributory Negligence of Servant — A timber man employed in a lode mine, having occasion in the discharge of his duties to walk upon the lagging of a drift is entitled to assume that it was constructed of proper material and in a proper manner — (559).</p> <p>At the" most, he is not required to do more than to examine the surface, restore any of the sticks which may be out of place and use reasonable care in making the passage — (560).</p> <p>6. Negligence — Por the Jury — Only when the facts are undisputed, and reasonable men can fairly draw but one conclusion is the question of negligence one of law for the court. The facts examined and the case held within the general rule — (558).</p>

<p>Appeal from Fremont County Court — Hon. J. L. Cooper, Judge.</p>

<p>Error to Weld District Court — Hon. Hubert L. Shattuck, Judge. .</p>

<p>Error to Washington District Court — Hon. E. E. Armour, Judge.</p>

<p>1. . Justice oe the Peace — Jurisdiction—Partnership Accounts — A justice of the peace has no jurisdiction to settle the accounts of a partnership — (584).</p> <p>Ambiguous testimony held to establish that, as to a portion of the claim asserted by plaintiff, it arose out of partnership transactions— (585).</p> <p>2. Instructions — Construction—Instructions are to be taken as a whole. A partial and insufficient statement of the law in one point of the charge may be supplemented by what is set down in another— (586).</p> <p>• 3. .Practice In , tiie Supreme Court — Partial Error — The judgment of the court helow ¡being erroneous in part the cause was remanded with directions to that court to modify its judgment, and as so modified it was ordered to stand affirmed.</p> <p>The plaintiff in error was allowed his costs upon the writ of error — (587).</p>

JOHN ,1. Mullins, Judge. Plaintiff in error brought suit to recoved diam-ages from defendant in error for the alleged failure of the latter to carry out the terms of a contract or option for the sale of certain shares of stock to plaintiff. To the complaint the defendant filed a general demurrer, which was overruled.

<p>1. Practice in the Supreme Court — Harmless Error — The rejection of a pleading is harmless if the party is permitted to put in testimony as fully as if the pleading had been permitted to stand-— (591).</p> <p>2. -Questions not' Presented Below — Will not be considered in the court of review, e. g., where a corporation plaintiff is permitted, without objecttion, to prove at the trial, the proceedings by which it became incorporated, though these are not asserted in the pleadings— (591).</p> <p>3. Corporations — Evidence of Incorporation — Incorporation is established, prima facie, by certified copies of the articles of incorporation and their renewal or extension- — (592).</p> <p>4. Evidence — Sufficiency—-Defendant having an interest -in an irrigating ditch, participated in the organization of a cofporation in the articles of association of which the same ditch was described, and it was set forth that the purpose of the parties was to protect their rights in the same ditch. He became a director and officer of such corporation, and a priority was awarded to the corporation in respect to the same identical ditch. These circumstances -were held sufficient to exclude all inference of a retention by the defendant of an individual and separate interest in the ditch, and to overcome his affirmative evidence of such retained interest — (592, 593).</p> <p>5. Injunction — Interference With an Irrigating Ditch — Restrained by injunction — (591).</p>

<p>Error to Larimer County Court — Hon. Fred W. Stover, Judge.</p>

<p>1. Criminal Law — Plea, of Former Jeopardy — Information for the unlawful sale of intoxicating liquors alleged to have been made on or about August 31st. Plea that on September 2nd an information was exhibited against the defendant charging the sale of intoxicating liquors to the same person, at the same place on or about August 24th, trial, conviction, and sentence thereon; that upon that trial evidence was admitted, not only of the sale alleged in the information, but of all other sales, and the jury were charged that the exact date of the sale needed not be proven as alleged; and that by reason of the premises defendant had been in former jeopardy for the same offense, etc. Beld that the plea was good in substance and called for a reply. —(597).</p>