Volume 52 — Colorado Reports

<p>1. Criminar Law—New Trial—Duty of Trial Court— Where, upon motion for a new trial the sufficiency of the evidence is challenged, it is the duty of the trial court to consider all the evidence, and the facts and circumstances' thereby presented, and unless reason and judgment approve the verdict, to grant a new trial—(6-8).</p> <p>The evidence examined and held insufficient to sustain a conviction for premeditated murder—(10).</p> <p>2. Practice in Supreme Court—Revisory Authority of the Court—The court has no power to decided matters not submitted to it according to tihe forms of the law—(5).</p> <p>3. -Harmless Error—The denial of a' motion to arrest judgment upon a criminal information is harmless. Every proposition which might have been urged in its support may still be .presented—(5).</p>

<p>1. Criminal Law —Evidence—Eying Declarations—The declaration of a deceased person that he has been “murdered” is the •expression of a mere opinion, and is therefore inadmissible to establish the degree of the homicide—(14).</p> <p>2. Practice in the Supreme Court—Error Presumed Injurious—The admission of incompetent evidence which may have influenced the jury as to the degree of the crime, is fatal—(14).</p>

<p>1. Municipal Corporations—Legislative Power Over—It is elementary that the legislative power over municipal corporations, except as limited by the federal and state constitutions, is plenary—(23).</p> <p>2. Constitutional Law—Eminent Domain—Public Parks'—• The acquisition of land for a public park is a public purpose. A park is a special benefit to the locality where it is established, and its cost, to the extent of the ¡benefit may be assessed against the property specifically benefited—23, 24).</p> <p>3. --Article XX—Section 1 of article XX of the constitution is not an expression of the only power granted to the City of Denver. The article confers upon the people of that municipality every power before that possessed by the legislature in respect to the framing of a charter, including the power to acquire lands for parks and park-ways by the exercise of the power of eminent domain, and to assess the expense thereof upon the lands specially benefited. The charter has all the force of an act of the legislature with respect to municipal matters, including the erection of taxing districts for local improvements, and special assessments for tlhe cost of such improvements—(24).</p> <p>4. City op Denver—Construction of Charter—Where it is proposed to establish a public park, take private lands therefor, and assess the cost of the improvement upon' the properties benefited, the only constitutional right of the property holder is to be heard upon the apportionment of the tax. The right to a preliminary notice of the intention of the municipal authorities to acquire lands for a public park, and the right of the property owner to remonstrate against and defeat the proposed improvement, secured by sec. 327 of the charter, is purely statutory. It might have been dispensed with. Therefore it was competent for the people to designate in the charter a board or tribunal with sole and exclusive authority to determine whether such notice was given, and whether a remonstrance, such as provided for by the same section, was or was not filed, or was or was not subscribed by the required' number of property owners—24-26).</p> <p>And. the property owners will not toe allowed, in advance of the passage of an -ordinance, as contemplated by t.he section, an injunction to restrain the exercise of this power. Denver v. Londoner, 33 Colo. 104, distinguished—(25-34).</p> <p>The provisions of section 327, to this effect, necessarily imply that the power and duty to determine as to these matters is vested in the city council—(33-34).</p> <p>Neither the rules adopted hy the board of pai’lc commission.ers, nor their proposed apportionment of the tax, nor their estimate of the area within the district, nor their findings as to •what lands are assessable, are binding upon the council. That body -has power to modify such rules, ascertain the area within the improvement district, compare it with the area. covered hy .any protest or remonstrance, pass upon the authenticity of the .signatures which appear appended to such remonstrance, as well as the title to the lots described therein, and to do all other ■things necessary to effect a valid 'assessment—38, 39).</p> <p>5. 'Statutes—Construction—What is implied in- a statute is .as much a part thereof as what is expressed'—(29).</p> <p>G. Whit of Ebboe—Nature of the Writ—A writ of error is a new suit, and not a mere continuance of the proceeding, the judgment in which is sought to be reviewed. Therefore, where in an action to restrain the passage of a municipal ordinance, which, upon its adoption becomes by statute conclusive as to certain facts upon which the rights of the party depend, a demurrer to the complaint is sustained, and a writ of error is prose•.cuted to review this judgment, but no supersedeas applied for -or awarded, and pending such writ of error the proposed ordinance is adopted, the supreme court has no power to nullify the ■ corporate action. The ordinance is conclusive, and the writ of error will be dismissed—(36).</p> <p>7. -Discontinuance—Where pending a writ of error, an -event occurs, without fault of the party successful below, which -of necessity renders any judgment which may be pronounced in the court of review, ineffectual, the revisory proceeding will be ■ dismissed—(37).</p> <p>The passage by a municipal council of an ordinance, the •passage of which was sought to be enjoined, and which by statute is made conclusive of the rights of the party, is- of this char.acter. The municipal council, acting by legislative authority, rand in the manner prescribed thereby, their action cannot be declared to be wrongful or improper—(37).</p> <p>8. Taxation—Special Assessments—In providing for a public improvement it is not essential that the property owner should have a preliminary notice of what is proposed, or its estimated .cost, or the lands' to be acquired, or those which are to be assessed; nor is it necessary that the electors of the municipality, or the property holders thereof, should be afforded opportunity to protest against or prohibit the improvement; ancf where all these things are provided for, a board or tribunal may be authorized, with final and absolute power to determine whether the essential preliminaries 'have been observed—(25, 26).</p> <p>8. -Exemptions—The exemption of property from taxation for general purposes does not exempt it from an assessment to meet the expense of a local improvement—'(39, 40).</p>

<p>1. Constitutional Law—Title of Btaute—The act establishing the court of appeals (Laws 1911, c. 107) contains hut one subject which is clearly expressed in the title “An Act in relation to courts of .review”—(65).</p> <p>2. -Vacancies in Office—Appointments by Governor—The provisions of sec. 6, art. 4, of the constitution, that “if during the recess of the senate a vacancy occurs” in any office, as to which mo other provision! -is made “the governor shall appoint some fit person to discharge the duties thereof until the next meeting of the senate,” refers to cases where the joint action of the governor and the senate is necessary to fill a vacancy. An ad interim appointment by the governor during the recess of the senate, does not fill a vacancy in the office.</p> <p>This is accomplished when, under the concluding provisions of the section, the senate being assembled, the governor nominates, and the senate confirms the nomination—(76-78).</p> <p>3. Statutes—Construction—The history of an enactment and the evils, inconveniences, or advérse conditions sought to be relieved thereby, are to be taken into consideration in ascertaining the meaning of particular provisions—■(86).</p> <p>4. -Waiver of Statutory Right—Generally speaking, one relay waive any right given by statute. The right to the' determination of -a particular cause in a particular court is not within any exception -to this general rule—(69, 70).</p> <p>5. Statutes—Construed—The provisions of the statute establishing the court of appeals that certain causes shall be, transferred by the supreme court to that court in no way impairs the jurisdiction of the supreme court—(66).</p> <p>The jurisdiction of a court does not depend upon the number of cases disposed of therein. Nothing in the act in question impairs the dignity or standing of the supreme court. The court of appeals, as well as all other courts, remains subordinate to it, and it has no co-ordinate. The act establishing the court of appeals has not the effect to discontinue pending appeals, but only to transfer them to the new court. Neither does it deprive any suitor of the writ of error out of the supreme court, nor deprive any one of the right to have such writ of error determined in the supreme court, but gives the choice of an additional tribunal in which the writ of error may be heard—(68, 69).</p> <p>It is not the election of the party, under section a of the act, which confers jurisdiction on the court of appeals. Jurisdiction is conferred by the act itself. When the party, after due notice, fails to petition for a remand of the cause, he, by this omission confers jurisdiction of his person, and the particular cause, upon the court of appeals, and that court having such jurisdiction its judgment is binding. The finality of the judgment is not affected by the statute, but by the party’s own choice — (69).</p> <p>The provision of the statute (sec. 1) that appoinments to the office "of judges of the court "shall not take effect until a confirmation thereof by the senate,” refers to original appointments for the full term. And the senate having adjourned before the act took effect, a vacancy was then existing in the office of the judges of the court, and no provision being made by the statute for filling the vacancy until the meeting of the senate, it became at once the duty of the governor, under the provisions of the constitution, to appoint some fit persons to discharge the duties of the office, until the next meeting of the senate—(78).</p> <p>The persons so appointed were lawfully appointed and lawfully entered upon the duties of the office, and there is no authority anywhere to oust them, until the senate again convenes—'(81).</p> <p>The confirmation of these appointments to fill the office of the judges of the court at an extraoddnary session of the senate was not contemplated !by the act. (1) Because as shown by the provisions of the statute it was the purpose of the general assembly that it should go into immediate operation, in order that the congested condition of the docket of the supreme court might be relieved; and the calling of an extraordinary session of the senate was an event too remote, uncertain, and conjectural, to be selected by any reasonable person for the initiation of the work of the new court. (2) Because the act indicates that confirmation of the appointments made thereunder were intended to be made at regular sessions of the general assembly. (3) Because it is to be presumed that the general assembly were aware of the doctrine announced in the People v. Rucker, 5 Colo. 455, and intended to be controlled by it. So intending, they could not have contemplated' an extra session—(82).</p> <p>. The provision of sec. 1 of the statute that, “except in case of vacancy through death, resignation or removal from office the governor shall fill the same until the next session of the legislature when the senate may confirm or reject the appointment so made,” though in form an exception, is in effect an independent clause. Everything embraced within an exception must be included in that from, which it is excepted—(79).</p> <p>6. Appeal—A Statutory Remedy—An'appeal -is a statutory remedy. The right to appeal, being given by a statute, may be taken awiay by statute—(67).</p>

<p>1. Practice in Supreme Court—~What May Be Assigned for Error—Separate causes, between different parties, but involving similar questions, are tried at the same time, by consent of parties, the records being made up separately. The defeated party will not be heard to assign error thereon—(110).</p> <p>2. --Findings on Conflicting Evidence—Will not be disturbed, where the testimony is sufficient to sustain- them—-(112).</p> <p>3. -Harmless Error—An erroneous reason or theory will not suffice to reverse a correct judgment—(112).</p> <p>The -admission of incompetent testimony as to a right incontestibly established by other testimony, is -harmless—-(115).</p> <p>4. Water Rights—Irrigation—Implied Limitation of the Right—The right to enjoy the waters of a ditch is limited by law, in both time and volume, toy the needs of the party. A decree directing a “constant flow” of a volume specified is subject to this limitation-, and to be read accordingly—(114)..</p>

<p>1. Practice in the Supreme Court—Waiver of Errors— Errors not argued will be regarded as Waived—(118).</p> <p>2. Pleadings—Construction—Contract or Tort—The complaint alleged that the defendant was conducting a boarding school; that plaintiff’s committed their minor son to the care of defendant, as a pupil in such school, in pursuance of a contract, whereby, for a consideration named, defendant agreed, among other things, that in case of the sickness of th© child, plaintiffs should be immediately notified, and a skilled physician should be called to prescribe for an attend upon the child; that the child was seized with a contagious illness, that the defendant failed to inform plaintiffs, and neglected to call a physician; that plaintiffs being informed of his illness, by the child himself, were permitted to remove him; that defendant failed to inform them of the dangerous character of the disease with which the child was afflicted; that although plaintiffs immediately employed skillful physicians, by reason of "the negligence and breach of contract” by defendant, the disease had made such progress as to be beyond the reach of medicine, and therefrom the child died. SeM, an action upon the contract and not in tort—(117-119).</p> <p>Such complaint states a cause of action. The court is not to say, as a matter of law, that the breach of the contract was- not the proximate cause of the death of the child.— (119-120).</p> <p>Averment that the defendant is a “corporation * * * under the laws of the state of Colorado, for the purpose of encouraging learning, extending the means of education, and giving permanency and usefulness” to a certain college named, is not to be taken as importing that the defendant is conducting a charity, and so is not liable upon the contract or for the negligence of its officers—(119).</p>

<p>1. Abbitbations—Parol, Submission and Award—Notwithstanding the .provisions of the code (Rev. Cod'e, e. 27), parties in difference may agree by word of mouth to submit the controversy to arbitration. The code, when complied with, gives to the award of arbitrators the effect of a judgment, but does not take away the common law right to arbitrate by parol'—(125).</p> <p>2. -Statute of Frauds—As a general rule a parol submission to arbitration is valid. Such a submission to arbitration of a controversy as to the number of bushels of wheat which by due care in threshing might have been obtained from a certain field, is not prohibited by the statute of frauds, though the amount in controversy largely exceeds $50—(127).</p> <p>And the award may be in- parol—(127).</p> <p>' 3. -Oath of Arbitrators—Where the submission is by parol the arbitrators may, in the absencp of a stipulation to the contrary, act without talcing any oath—(128).</p> <p>4. -Irregularity in Proceedings of Arbitrators—That the arbitrators proceeded contrary to law, e. g., that the advisary party was present with them, in violation of a stipulation, is no ground to exclude evidence of the submission anid award.— (128).</p> <p>5. Tbial—Reserving Questions for Review—Where the trial court has once ruled upon the admissibility of evidence and an exception has been reserved, it is not necessary or proper to renew the contention by an offer of other evidence, or by praying instructions— (129).</p> <p>6. -Duty of Counsel—It is the duty of counsel to call the attention of the trial court to any decision of this court, oit the court of appeal's, directly upon the question involved—(126).</p>

<p>Criminar Law—Practice of Medicine without License— Under Rev. Stats. 6069, one who practices osteopathy, not prescribing medicine or administering drugs, is not guilty o£ any offense, though he assumes the title of doctor—(131).</p>

<p>1. Trusts—Constructive—IAmitations—One who purchases property from a trustee who conveys in''contravention of his trust, is a trustee by construction of law, and' in no sense the trustee of an express trust. He holds in hostility to all the world, and whoever would assert the fiduciary character of his holding must bring his action within the five year limitation prescribed by Rev. Sfat. sec. 4073'—(139).</p> <p>2. Notice—Constructive—One -who purchases an interest in the results of a litigation pending in the supreme court is under duty to keep himself advised of the progress and results thereof. He is chargeable with constructive notice of a decree subsequently rendered in the same cause, after its remand to the inferior court. The rule applied even to a non-resident—(142).</p> <p>3. (Maxims—One alleging Contraries will not he Hears— Plaintiff claiming to be entitled to an interest in certain properties which had been acquired by the defendants by virtue of a certain decree, will not be heard to allege the .invalidity of the decree so far as it is detrimental to his claim—(140).</p> <p>4. Pleadings—Construction—In construing a pleading the substance and not the form is to be looked to—(141).</p>

<p>Pxeadistg—Judgment on Demurrer—Construction—A demurrer to a complaint, assigning several causes, is sustained by general judgment. The effect of such judgment is to resolve all’ Questions presented by the' demurrer in favor -of the demurrantOne ground of demurrer being tbe absence of capacity to sue, amendment is impossible, and the plaintiff must stand by his case as made—(148).</p> <p>2. ——Defects of Form—Remedy—Where a complaint states a cause of action a demurrer because the allegations are informal or incomplete will not lie. The remedy is by motion— (149)..</p> <p>3. -Fkauu—Equitable Relief—Parties having- or claiming a water right collude with a majority of the members of a municipal council to purchase such water right on beh'alf of the municipality, for a sum greatly in excess of its value. The conspiracy is carried into -execution, anid) obligations purporting to-be the obligations of the city are issued for the exaggerated valuation. Some of these pass into the hands of the corrupted members of the council-, some to the other parties to the' fraudulent combination, and some to -third persons. Th-e city may maintain an equitable action for relief, against all these parties—(151, 15-2).</p> <p>All questions as to the rights of bona fide purchasers were reserved—1(152).</p>

<p>1. Pardon—Effect—'Where, pending a writ of error by two, to review a conviction of crime, one of the convicts is pard'oned, the cause will proceed as to the other—'(154).</p> <p>2. Cbiminal Law—Conviction toithout evidence—A conviction of crime, not supported by any evidence of guilt, will .not be permitted to stand—(156).</p> <p>The evidence examined and held entirely wanting in probative effect to charge the accused—(155, 156). :</p>

<p>1. Quieting Title—Plaintiff’s Possession—In an action under -the col. (Rev. Code sec. 274, Mills, Code sec 255), the complaint must aver not only the plaintiff’s title but his possession of the lands. When the answer in the same defense asserts adverse title ini defendant and denies plaintiff’s possession (if such denial is necessary), such possession must be proven. If no evidence of such possession, or that the lands are vacant, is produced, the plaintiff fails—(159, 160).</p> <p>2. -Presumption of Possession—Possession is presumed from evidence of title in fee, only when the land is unoccupied— (162)'.</p> <p>3. -Answer—An answer asserting an adverse title puts the plaintiff on proof of both title and possession, even though it also prays that the complaint toe dismissed, and that the defendant be decreed the-owner. -Such prayer of only the relief to which defendant would be entitled, upon mere assertion of his claim, will not be'regarded as a waivér of proof of the plaintiff’s possession. Relender v. Riggs, 20 Col. Ap. 423; distinguished— (160, 161).</p> <p>.Save in the case of unoccupied lands, and possibly such real ’ property as a water right, the statute requires an actual possession—(164).</p> <p>4. Precedents—Construction—Every judicial opinion must be taken with connection of the facts of the particular case— (163).</p> <p>5. Deed—Description—False Demonstration—A deed conveying lands by the numbers of the section town and range, but declaring that the lands are situate in Arapahoe County, when in fact they are situate in “Washington, the reference to the county is rejected—(166, 167).</p> <p>' ' 6. -Acknowledgment—A conveyance of lands bearing a certificate of acknowledgment which shows upon its face that the commission of the certifying officer had expired years before the date of the certificate, is not to be received, without other proof of its execution—(167).</p> <p>7. Tax Titles—Void Deed—A tax deed which recites that the lands were struck off to the county on the first day of the sale, or the first day on which they were offered is void—(168).</p> <p>.So a deed- which shows upon its face that it is based upon a sale to the county, and an assignment of the certificate by the clerk, more than three years after the sale, at a time when the law authorized such assignment only within that period'—(168).</p> <p>8. Tax Purchase Certificate—Assignment—The county clerk when by law authorized to assign a tax purchase certificate may do so either in his own name, or in the name of the county.</p> <p>If the assignment bears date after the lapse of the period during which the clerk is- authorized to make such assignment, the circumstances that it is in the latter form will not raise the presumption that the assignment is the act of the county, or authorized by the county commissioners, in the absence of evidence of such authority—(168, 169).</p> <p>9. ¡Void Tax Deed—Recovery of Taxes Paid—.In an action to quiet title the defendant claiming under a void tax deed Is -permitted to prove the amount of taxes paid by him to obtain an assignment of the tax certificate upon which the deed is founded —(169).</p> <p>10. -Decree Quieting Title—Should pursue the rule prescribed in Charlton v. Kelly, 24 Colo. 275.</p>

<p>Practice in Supreme Court—Review of Proceedings Subsequent to Judgment—Proceedings subsequent to judgment win be reviewed only as an incident to, and in connection with, such final judgment. Where error is assigned only upon the denial of a motion to vacate the final judgment given in the court below, the writ of error will on motion be dismissed without prejudice — (171).</p> <p>Such assignment impliedly concedes that the judgment was • a proper one; therefore no error can have been committed in denying the motion to vacate it—(172).</p>

<p>1. Tenants in Common—Conversion 0y One—Under the .statute (Rev. Stat. sec. 3603) one tenant in common may have an action against his co-tenant for the conversion of the chattel held in common—-(175).</p> <p>2. -What amounts to a Conversion—Plaintiffs held a chattel mortgage upon the .interest of defendants’ tenant, in a crop of beets. To save the crop it was necessary that the beets should be gathered in certain months. Plaintiff applied to defendant for permission' to enter and gather the % of the crop covered by the mortgage. Defendant’s -refusal of the request and denial of' plaintiff’s right is a conversion—(177).</p> <p>Plaintiff recovers the value of the tenants interecc after deducting the cost-of harvesting and making delivery—(176, 177).</p> <p>•3. Lease—-Construed—Defendant leased 15 acres of his plantation to one-Cronk. -Cronk after-wards executed a chattel mort-: gage of his interest in the crop, to the plaintiff, describing the. land.. The mortgage, following the description, contained a provision to the effect that is such description was not correct the mortgage should cover all crops raised by Cronlc in the county-, during the season. Held that the latter clause was without effect in the absence of evidence of any falsity or insufficiency in the description set down in the mortgage—(177, 178).</p> <p>4. -Partial failure by tenant in his covenants—Bffect—K lease of lands for the cultivation of beets provides among other things - that the lessee shall harvest and deliver the crop at a certain. factory. His failure to comply with this covenant has not the effect to obliterate his interest, or vest it in the lessor, in the'absence of any express provision to this effect—(175).</p> <p>5. -Chattel Mortgage—Of Farm Products by Lessee—A lessee of lands may effectually chattel mortgage his interest in the crop—(176).</p> <p>6. Instructions — Misleading — An erroneous instruction which may have induced the jury to award excessive damages is fatal error—(178).</p>

<p>i. Specific Pekfobmance—Contract—Certainty Required—• Specific; performance of an oral contract for the purchase of lands, incomplete as to its terms, cannot be. had—(181).</p> <p>. 2. ,--Oral Contract—Writing Substituted—Npr of a verbal contract for which, without any fraud, misunderstanding', or evil practice, a written contract is afterwards substituted—'(181).</p> <p>:i'3. —Oral'Contract Afterwards Waived—Nor'where, though thej contract,is certain, part payment nVade, and possession taken by tbe purchaser, a different contract is afterwards substituted.'</p> <p>The effect of such substitution is to rescind- the previous oral agreement—(182).</p>

<p>Constitutional Law—Article XX Construed—-Upon the adoption of article XX of the constitution every provision of the former charter of the city' of Denver, and its ordinances, in conflict with the provisions of the new article, immediately lost their effect; and it being the manifest purpose of sec. 2 of that article that all powers and duties theretofore pertaining to officers of the then county of Arapahoe, as well as those of the then city of Denver, should thereafter be exercised and performed by a single set of officers, drawing one salary, a like purpose must be asscribed to sec 3-—so that the economical administration of the new body politic should begin as soon as the amendment should take effect—186-188).</p> <p>The county clerk then incumbent, was not entitled to a salary as city clerk, during the period intervening between the adoption of the article, and the going into operation of the new charter adopted by the city, pursuant to its provisions—(189)-</p>

<p>1. Statutes Construed—Continuing Appropriations—‘An appropriation of public moneys will not be inferred from doubtful or ambiguous language—(193).</p> <p>A statute creating a commission and authorizing it to appoint a secretary, and providing that “he shall be paid a salary not to exceed” a specified sum annually, cannot be construed to create a continuing appropriation for any amount whatever— (194).</p> <p>The circumstance that, by the statute, a fund derived from certain fees was provided, in addition to the general fund, to which res'ort might be had, for the payment of the salary in question is an additional ground to refuse to the statute the effect contended for. Until legislation fixing both the amount appropriated, and the fund or funds from which payment shall be made, the auditor of state is without authority to draw any warrant for the secretary’s salary—(194, 195).</p> <p>Attorney General—Opinions—Effect—An opinion of the attorney general is not conclusive against the' state, and, When without support in law will not be followed by the court—198).</p>

<p>1. Appeal—Effect—An appeal from an order allowing against a decedent estate, interest upon a promissory note, has not .the effect to bring into review a later order denying a claim against the estate for an attorney’s fee, asserted pursuant to the terms of the same promissory note—'(201).</p> <p>2. ——:Harmless Error—The admission of incompetent testimony as to a fact which is established by other competent and convincing testimony,'is harmless—(204).</p> <p>3. .Intebest—Waiver of—A promissory note bore interest at a specified rate until maturity, and at an increased rate thereafter. A year after maturity the payee accepted two years’ interest at the original rate, and repeatedly stated afterwards that she was allowing the money to stand out at the original rate. Held, the increased rate was waived—(202-204).</p> <p>The creditor in such case is presumed to know the contents of the paper, and especially the provision for. the increased rate of interest after maturity—(202).</p> <p>4. -The stipulation for increase in rate after maturity, is a contract and not a penalty.</p> <p>5. Contracts—Construction—Unknown Provision—A stipulation in a promissory note of which neither of the parties thereto is aware must be rejected as no part of the contract— (203, 204).</p>

<p>1. Practice in Supreme Court—Finding Supported by Sufficient Evidence—Will not be disturbed—-(206).</p> <p>2. Principal and Agent—Employment—Implied—One wbo avails' himself of the services of another, knowing that compensation is expected, is not permitted to deny liability; a land owner availing himself of the services of a broker, and carries out an exchange of land which the broker has accomplished, is liable for the commission reasonable and customary in like case —(206).</p>

<p>1. Pleadings—Defective Complaint—Waiver lyy Answer— Bill to quiet title fails to aver that the claim asserted by defendant is adverse to plaintiff, answer asserting an adverse cl^im cures the defect—(210).</p> <p>2. Quieting Title—Tender of Taxes—Not required—(210).</p> <p>3. -Plaintiffs Title and, Possession—An answer contain- ■ ing mere admission and denials, but not asserting an adverse title, does not put plaintiff to proof of either possession or title— (211, 213).</p> <p>Otherwise when the answer asserts an adverse title, though not denying the allegations of the complaint.</p> <p>4. -Answer—-Merely asserting a adverse title is sufficient. Lambert v. Shumway, 36 Colo. 350, Mitchell v. Knott, 43 Colo. 135, explained—213, 215).</p> <p>5. -Evidence—Constructive Possession—A deed of trust purporting to convey the land, and a trustee’s deed thereunder, no possession in the grantor in trust being shown, nor title in him from any source, is insufficient to establish title—(216).</p> <p>6. Pkocess—Service by Publication—A decree by default, upon mere publication of the summons, upon an affidavit which fails to comply with the statute, is void—(215).</p> <p>7. Tax Titee—Tax Deed not Recorded—Conveys no title—■ (211).</p>

<p>Constitutional Law—Elective Franchise—Legislative Power in Restricting Exercise. ■ Under the constitution (See. 5, Art. 21, Sec. 1, Art. VII,) every qualified elector has the equal right to cast a ballot for the person of his own selection, and nothing can lawfully prevent the exercise of this right. Legislative regulation of the franchise cannot extend to deny its exercise, or trammel by conditions so difficult or inconvenient as to amount to a denial. Accordingly held that portion of Sec. 5919 of the Revised Statutes which provides that at election for school directors “no person other than those whose names appear upon the ballot”—prepared by the secretary—“shall be voted for,” is unconstitutional— (220-224).</p> <p>The legislation distinguished from the Australian ballot acts — (225, 226).</p>

<p>1. Divorce—The state a Party in Interest—Duty of the Court. In every action for divorce the state is a party, and if it appears that the action is collusive, or if upon the facts developed a divorce ought not to he granted, it is the duty of the court to deny it—(229).</p> <p>'.In such action it is error to receive a verdict which fails- to respond to counter charge of violation of marital duties pleaded in answer—(230).</p> <p>•A cross complaint, defective because omitting a jurisdictional averment so that no divorce can be awarded thereon .to the defendant, must be investigated, and may serve to defeat the action —(230).</p> <p>If upon the testimony presented, the wife applying for the divorce appears to have been herself guilty of willful desertion, it is the duty of the court, upon its own motion, to deny her application-—(231).</p> <p>2. Evidence—Preponderance—Number of Witnesses. The preponderance of the evidence is never determined by the mere number of witnesses, though they be of equal candor, fairness, intelligence, and truthfulness, equally without interest, and equally corroborated—(232).</p> <p>Their opportunities, respectively, to know whereof they speak, their manner in giving testimony, and many other circumstances are to be taken into consideration—(232).</p> <p>3. Instructions—Prolixity—Censured—(232).</p> <p>i. Appeals—Bill of Exceptions—Where necessary—An instruction which is erroneous upon any conceivable state of facts is fatal error, even though the evidence is not preserved in .the bill of exception—(233).</p>

<p>1. Municipal Corporation—Power to define nuisance—Under sec. 6525 Rev. Stat. the city council of a city, or the board of trustees of a town may declare horses, cattle, sheep, swine, goats, or other like animals running at large within the corporate limits, a nuisance, and impose a fine oni any person permitting it—(235).</p> <p>2. -Statutes construed—Act of April g, ig07—Providing a system of procedure where animals are found running at large within the limits of a municipality, contrary to ordinance, has not the effect to take away the power preciously vested in municopal corporations to proceed personally against one permitting the nuisance. .It was intended merely to provide that when by ordinance an animal found unlawfully at large is directed to be impounded, the ordinance should provide for its enforcement in the manner there prescribed—(237).</p> <p>3. Statutes—Repeal by implication—Not favored.</p> <p>A statute providing that where an animal is impounded, because found' at large Within corporate'1-imts;' in violation of ordinance, a certain notice shall be given to the owner, that' the animal shall be sold in a manner specified, if not claimed, and providing for the disposition of the proceeds does not repeal - a prior statute authorizng a fine upon the person guilty of permitting -the nuisance—(236-237).</p> <p>4. Municipal Corporations — Ordinance.—.Enforcement — Where a fine is provided by ordinance as a punishment for -its violation, the person sought to be charged must have actual notice'of the'accusation, and his day ini court—(237).</p> <p>* 5. Practice in the Supreme Court—Verdict on Conflicting Evidence—-Will not be reviewed, where there is sufficient in the record to support it—(238).</p>

<p>1. iSaue—To one Person on the Credit of Another—Merchant who sells goods to one person, upon the order and account of another, agreeing to look solely to the latter for payment, has no recourse upon the former—■(241).</p> <p>2. Husband and Wife—Liability for family expenses. Before sec. 3021 Rev. Stat. can be invoked, a primary obligation upon either the husband or the wife, for the debt sought to be charged against them, must be established.</p> <p>Goods sold to the husband on the sole credit of a third person, are not a charge upon the family, though consumed in the family—(242).</p>

<p>Practice in Supreme Court—Finding upon conflicting Evidence—There being sufficient competent evidence to sustain it, will not be reviewed.</p>

<p>Chimiwal Law-—False Pretenses—To come within the statute (Rev-. Stat. sec. 1849) the false representation, .charged must relate to some fact past or present. An information charging the acquisition of a land by means of a false representation that a check drawn by the accused upon a -bank in a distant city would be’ 'paid by the bank, where as in fact is was not paid, payment thereof being stopiped by the accused—it not being alleged or pretended that the accused had not the amount of the check to his credit in the bank, but the contrary being conceded states no crime—'(246-248).</p>

<p>’ . 1. . Continuance—Discretion—The granting or refusal of an application for continuance is largely in the discretion of the trial court. Only, for an .abuse .of discretion will its ruling be disturbed—(254).. . , . • •</p> <p>.A second or further continuance is not favored, and. will usually be denied unless the applicant shows all reasonable efforts made to be prepared for trial—'(255). ' ‘ ' ‘</p> <p>‘ 2. -Absent witness—Diligence—Defendants applied for a continuance upon the ground of the absence of one of the: defendants, and another material witness. As to the absent defendant, there was no showing that he would be able to be present within any reasonable time, nor was the failure to secure his deposition excused. ■ . .. •</p> <p>As to the witness, his whereabouts in another state had 'been ascertained, a dedimus for his examination issued, and the witness had been directed to attend the commissioner. The cause being set for. trial on January 2nd the attorney who prepared the interrogatories for this witness had gone to New York, early in the preceding December, and failed to return until the 24th of that month. But defendants were represented by another attorney, and there was no showing of anything done, upon -his part, during the absence of his associate, to secure the deposition^ nor that any effort had been made to procure the attendance of the witness before the commissioner, save to request such attendance, nor but that • his personal attendance at the trial might have been secured. ■</p> <p>The showing was held entirely insufficient—(255-256)..</p> <p>3. ——Conditions Imposed—Plaintiff in 1907 sued- before a justice of the peace for wages as' a farm hand, earned durig 1906, and moneys expended at defendants request. Defendants put in a counter claim which afforded a presumption of bad faith, and a purpose to intimidate plaintiff and constrain him to discontinue his action. Plaintiff prevailed, and defendants appealed, and by dilatory motions, protracted the litigation. In November, 1908, defendants were granted a continuance to Jan. 2, on condition that they should pay certain costs incurred by the plaintiff. Jan. 2, though not having complied with this condition, they applied for a further continuance on account of the absence of witnesses. The showing of diligence was insufficient. Nevertheless the application was allowed, and the cause continued to March 16th, but on condition that, by Feb. 16, defendants should pay all costs accrued in the action, and that, failing therein, the court in its discretion, might exclude them from further defending the action or prosecuting their counter claim. Held that the circumstances justified the imposition of this condition; that plaintiff's insolvency was no ground to excuse defendants’ compliance with the commissioner; nor was a motion to retax the fees of certain witnesses,. on affidavit of immateriality; nor was a motion to change the venue; nor a motion for a third continuance—(256^359).</p> <p>■4. -Acceptance of conditions imposed presumed—A party wild accepts a continuance must be held to assent to the condition upon which it is granted, even though at the time, he objects and protests. Desiring to contest the propriety of the conditions, he should refuse the continuance, reserve an exception and- proceed to trial—(259, 260).</p>

<p>.• Error to La Plata 'District Court.—Hon. Charles A. Pike, Judge.</p>

<p>1. Corporations—Transfer of Stock—To perfect a transfer of corporate stock as against innocent third persons purchasing for value, the certificate must be assigned, and surrendered to the corporation, a new certificate issued, and the record required by the statute (Mills Stat. sec. 508, Rev. Stat. sec. 870) made in the, .corporate books—(273).</p> <p>. 2. -Pledge of. Corporate Stock—A stockholder pledged his stock to -secure a loan of money. The pledge was evidenced by-a-writing separate from the stock certificate. This writing was' exhibited- to the secretary of the corporation, and he appended -thereto- hi-s certificate, that he had-,-“made the necessary transfer of said shares” to the pledgee “on the books of the company.” Some memoranda in perici-l’of this pledge, the contents of-which was not shown, was made in th-e books of the company, but was afterwards, and- before the transfer of the certificate, erased.. The stock .certificate, without' any assignment or note of the pledge thereon, was left in the hands of the stockholders, who, ’by: proper endorsément,'assigned it to- an- innocent purihaser- for value. Held■ that the-innocent purchaser was- to he preferred to the pledgee, and that the corporation, could not be required to issue to the pledgee a certificate evidencing the shares,' wMle ’that issued' to' the purchaser for value was outstanding—(270-273).</p>

<p>1. Chattel Mortgage—Waiver of Mortgagee's Lien—If mortgagee consent that the mortgagor may sell the mortgaged chattels, he will not be allowed to aftei'wards ’set up the mortgage as against the purchaser—(278, 279).</p> <p>2. —Authority of Mortgagee to Sell, may be inferred from circumstances. Direct evidence is not required. The question depends on the intent of the parties, and is for the jury—(278).</p> <p>3. Eudexce—Relevancy—Plaintiff sued for the value "of lambs upon which he held a chattel mortgage. Defendants claimed under a purchase from one, to whom, as they asserted, the mortgagor had sold them, by express consent of plaintiff. Evidence that shortly after purchase the pur-chaser remitted to plaintiff,a check for credit of the mortgagor, what disposition he made of the check, and when he was first informed, that the check was given on account of such purchase, was held relevant to the contention of defendant—(278, 279).</p> <p>4. Conyebsion—Mortgaged Chattels—Measure of Damages— Mortgagee suing for the conversion of the mortgage of chattels recovers only what is due him of the mortgage debt—(279, 280).</p>

<p>1. Constitutional Law—Police Power—Cannot be Renounced—The governmental power of self-protection cannot be granted away. A franchise granted to a railway company to construct and operate its tracks along or across a public highway is subject to the limitation that -the use of the street by the public sh-all not be unnecessarily or materially interfered with. The right of the public and of the railway company in the street must be exercised by each with due regard to the rights of others—(285).</p> <p>2. - -Streets—Unlawful Use by Railway Company—Effect— The, primary purpose of a street is travel and transportation— f286). '</p> <p>'Acquiescence by the municipal authorities in the unlawful use of the streets óf a city by -a railroad company for a considerable time, to a limited extent, is no waiver of public night; and where an attempt is afterwards made to so increase the improper occupation of the streets as to materially interfere with public travel, the municipality may by ordinance prohibit the wrong, and impose a penalty for the violation of such ordinance -(289-292).</p> <p>3. Statutes—Construed—The legislative grant to a railway company of the right to construct its track across common roads “in such manner as not to impair their usefulness” does not exclude the control by a municipality of its streets. Nor does a municipal grant of the right to “construct and operate” tracks along a designated street, over and across” other streets named; "with the privilege of laying one or more tracks along said right of way, and the privilege of laying one or more switches or side-tracks through, over and across and along said street.” The municipal authorities’ may nevertheless prohibit the use of any of the streets named for the purpose of making or breaking up trains, or switching or shifting cars—(286-289).</p> <p>4 Estoppel—By Conduct, does not arise from mere acquiescence, not accompanied by any affirmative act which can in any way mislead the party asserting the estoppel, or give rise to an influence of the abandonment of his right by the other party.</p>

<p>1. Alimony—Foreign Decree—Effect—Where by the law of the state iin wMch a decree far alimony is rendered, the court in which the decree was entered has authority to annul or modify it as 'to- accrued installments, there is no vested right in such installments, the decree is in no sense final, and is not within the protection of the full faith and credit clause of the federal constitution—(295, 296).</p> <p>Otherwise if the court has no such power. In the latter case the debt is a debt of record, and absolutely enforcible—'(296, 297).</p> <p>And in the absence of clear language in the legislation of such state, manifesting an- -intention to confer such power, every reasonable implication will be resorted to to deny its existence— (297).</p> <p>The provisions of 'the code of California, examined, and held to confer upon the courts of that state no power to revoke or modify -decree for alimony, as to installments accrued prior to the making of the application—(297).</p> <p>2. Pkactice—Vacating Judgment—Where the defendant, being aware of a -defense to the plaintiff’s action, but without evidence to establish .it, goes into trial without any application for delay to enable him to procure his evidence, the judgment will not-be vacated, in order to -admit this defense.-—(297).</p>

<p>1. Chattel Mortgage—Secret Lien—A secret lien created by agreement between the owner of chattels and a third person, the possession remaining with the owner, is without effect as against one who, without notice thereof, accepts a chattel mortgage from such owner. The mortgage being duly recorded is preferred to the lien holder or those claiming under him'— (299).</p> <p>2. -Secret Lien Substituted—The substitution of a secret sale or pledge of chattels for a mortgage thereof is an abandonment of the mortgage—(299, 300).</p>

<p>1. Master and Servant—Who Are Fellow-Servants—The foreman of -a party engaged, in repairing a railway bridge is not a fellow-servant with the brakeman upon one of the railway-trains. He is 'the representative of the- company, and if by his want of ordinary care in. the premises the brakeman comes to harm, the railway company is responsible—(304, 305).</p> <p>2. --Duty of Master as to Place of Worlc—A. railway company -is under duty towards those who. operate its trains to use ordinary care to make i-ts- -tracks reasonably safe.</p> <p>This duty cannot be delegated so as to exonerate the company—(305).</p> <p>3. Jury—Challenge for Cause—In. forming a. jury to try an issue of fact the court exercises a wide discretion:. The denial of- a' challenge will -not be -disturbed: unless some positive statute has been violated, or the court has abused its discretion.</p> <p>And it must -affirmatively appear that the complaining party has exhausted his peremptory challenges—(307).</p> <p>:-'4. Trial—Directing Verdict—-Where, in an action for negligence,-• the- un-contradicted testimony, even that 'presented by the defendant,. establishes the charge, the court may direct a verdict for plaintiff, submitting only the question of damages—(306).</p> <p>5. Biii or Excehtions—Where Necessary—The jury list required by Mills’ Code, sec. 185 (Rev. Code, sec. 202), is no part of 'the récord. Even though copied into- the transcript sent to. this court, it -will not be regarded—(308).</p> <p>6. Evidence—Mortuary Tables—[Where -in an -action for personal injuries there is evidence that the disability complained of is permanent the mortuary tables prescribed- by -secs. 2490-2491 Rev. Stat. are -admissible to establish the plaintiff’s expectancy of life.</p> <p>The. tables are not conclusive, but -are to be considered in connection with other evidence as to the health, habits and condition of the injured party—(309).</p> <p>7. Damages—Personal Injuries—'Plaintiff sustained permanent injuries, through the negligence of defendant. He was but twenty-five years old, in good health, and -earning from $115 to $125 monthly. A verdict of $14,000 was held not to indicate that the jury had misapprehended the testimony, -or were influenced by prejudice, or any improper consideration—(307).</p>

<p>1. Homestead Exemption Laws—Construction—The .statutes enacted pursuant to the mandate of the constitution, exempting the homestead from execution are to be liberally construed, with a view to effecting the beneficent purpose of the enactment —(313).</p> <p>2. -Record of Claim of Homestead—Attestation, by the deputy county clerk, not using the name of his principal, is effective and sufficient—(314).</p> <p>3. Homestead—Abandonment of, occurs only when the claimant actually quits the premises with intent not to again occupy them as a homestead—(313).</p> <p>4. Conveyance—Unacknowledged, conveys the title. Its execution being admitted it is properly received in evidence. —(Rev. Stat. secs. 693-697.)—(315.)</p> <p>5. Trial—Party Confined to the Issues—A party is not to be allowed to recover upon an issue not tendered by his pleadings—(315, 316).</p> <p>6. Pleadings—What Must Be Specially Pleaded—'Defendants levied an execution against one R. upon certain premises. Plaintiff claimed under a conveyance from R., executed at a time when the premises were, as plaintiff alleged, her homestead. Held, that if defendants wouldi show that R. by her marriage, lie fore .such conveyance, had lost her character as the head of the family, and had therefore no right to the statutory exemption, they must plead this defense—(316).</p>

<p>Under the statute (Rev. Stat. sec. 3840) a petition for certiorari to a justice of the peace must show among other things that it was not in the power of the petitioner to appeal from the judgment complained of. The statute is not complied with by a petition which merely shows, as ground' for the failure to appeal, that, the 'action being replevin the verdict failed to find the value, or the damage consequent upon the taking. The omissions of the verdict, and the judgment thereon, in this respect, did not prevent an appeal.</p>

<p>1. Justice of the Peace—Summons Subscribed by Cleric—■ Under the statute (Rev. Stat. sec. 3721) a justice of the peace cannot by a general deputation authorize his clerk to subscribe his name to all processes to be issued from his court; and a judgment by default upon mere service of such a paper is void— (321, 322).</p> <p>2. Judgment—Void—Effect—A judgment by default, rendered by a justice of the peace, without service upon defendant of valid process, may be questioned at any time, and: in any form of proceeding, direct or. collateral—(320).</p> <p>3. Maxims—Delegated Authority—A bare authority to do an act cannot be delegated. Especially is this so where the exercise of the power involves discretion—(321).</p> <p>4. Pbincipai, and Agent—Act Done by One in the Name of Another and in His Presence—The clerk of a justice of the peace, sitting in the office of the justice, being requested by an attorney to subscribe a summons which the attorney had prepared, complied, susbcribing the name of the justice. The justice was present, but gave no express authority for the act, and so far as appeared, was unconscious of what occurred. Held, it was not to be said that the summons was so subscribed by the direction of the justice—(324).</p>

<p>1. Constitutional Law—Charter of Denver—Article XX of the constitution providing that a certain percentage of the qualified electors' of the city may petition the council for any amendment to the charter, and that the council shall submit it at a special election, when requested, to be 'holden within a specified limit of time, no provision being made as to the form of the petition, the procedure for ascertaining the sufficiency of the signatures, the form of submission, or of the neces.sary details, .such details are proper subjects to be regulated and controlled by charter—(329).</p> <p>2. -Amendment of the Charter—Power of the City Council—Under sec. b of art. XX of the constitution the citizens of ■the municipality of Denver, so far as concerns municipal matters, have all the powers of the legislature. The power so exercised is legislative in its character, and is exclusively vested in them. The power is granted not to the citizens and the city council, but to the citizens only. And the power includes the power to initiate any proposed amendment to the charter. The petition for an amendment is part of the act of legislation, and the petitioners, in submitting their petition, are exercising legislative power; they who. thus initiate the measure, and the whole body of electors who vote upon it, constituting the legislature of the municipality—(331, 332).</p> <p>The proceeding is analagous to that provided by the constitution for the amendment of the fundamental law. The petitioners stand in the same relation to the proposed- amendment as does the general assembly to any amendment proposed to the constitution—(333, 334).</p> <p>An assumption by the city council of authority to judge of any legislation proposed by such petition, and to refuse to submit it to the electorate, as required by the constitution, because it would be invalid if enacted!, is an attempted exercise of legislative power from which the council is excluded by the express terms of the constitution. The council has no such authority. It is no part of its duty to inquire into the validity of the proposed measure. Its only duty is the ministerial one expressly prescribed by the constitution, to submit the proposed measure to the vote of the electors.—Mnsser, White and Bailey, J. Js.— (343-348).</p> <p>The petitioners are entitled- to the submission to the electors, of the measure which they propose, only in case they, have petitioned in the manner prescribed, and for that character of legislation which, by the constitution, they are empowered to initiate— (350-351).</p> <p>And the city council is vested with power to determine in the first instance whether what is proposed is within- the constitutional prescription, and if not to refuse to submit it to the electors, their action being subject to review by the courts. And the courts in determining the propriety of the action of the council in such case, are not invading the functions of the legislative department, or interfering with the formative stages of legislation. Article XX of the constitution does not authorize the submission to the people, as an amendment, to the charter of what is in effect a new charter—(352-356).</p> <p>The measure proposed as an amendment, in the present case, inasmuch as it changes the city council from a body composed -of two houses, the members chosen from designated districts, to a single body of five commissioners chosen at large, so that a.ll may come from- one locality, denying to the mayor the veto of power now vested in him, reposing in the five commissioners all administrative powers which, by the existing charter, are vested in separate boards, commissions and officials, is not a mere amendment but an entire change in the plan, of government which can only be ecected by a charter convention—-(361-367).</p> <p>Moreover, the proposed amendment consists of several distinct propositions, many of them entirely foreign to the proposed change in the form of government,—all to be submitted as a single amendment. The elector is afforded) no opportunity to vote for those which he favors, and aigainst those of which he disapproves. He must vote for or against all—a form of submission in conflict with the letter as well as the spirit of our election laws, and condemned by an unbroken line of authority. Gabbert J., Garrigues J., concurring—>(366-370).</p> <p>The petitioners are entitled to have submitted to the electors of the city what the constitution provides shall be so submitted, and nothing more, and only in the manner provided! for in the constitution—'(372).</p> <p>The city council are vested with authority and it is their duty, subject to review by the courts, to determine whether the measure proposed is one which, by the provisions of the constitution, may be submitted in this manner—(373, 377).</p> <p>The designation given to the instrument by the petitioners is not controlling upon the council or the courts—(379).</p> <p>This court should now determine the character of the instrument proposed and if it is not such a one as the council is authorized to submit in the manner attempted' and if for this reason it would be invalid if adopted, the courts should not compel its submission. Hill J.*—(379).</p> <p>3. -Power of the Courts—While any proposed amendment of the charter of the city and county of Denver is pending, the courts have no power to inquire into or pass upon the effect or validity of the measure proposed—(387, 388). When it has received the approval of the electors, and assumed a place in the charter, the courts may, when actual litigants whose rights are affected are before them', determine the validity and effect of the measure—and only then. Musser, White and Bailey, J. Js.—(388).</p> <p>4. Mandamus—When the Writ Issues—When the municipal council, or any section or body thereof, of a city having by the constitution power to enact their own charter and from time to time to amend it, refuses to submit to the electors an amendment proposed in the manner, and by the number of electors prescribed by the constitution, it is the duty of the courts, by the writ of mandamus, to compel the performance by the obstructive body of the ministerial duty which the constitution imposes—(340-342).</p> <p>-* Syllabus by Hill J.</p>

<p>OojsÍstÍtutiónal Law—Art; XX—There are within the municipality of the city and county of Denver, two governmental entities, a county;: with all the duties of a county as prescribed by - the general law, and. a city, with duties wholly of local character. All the duties of these governmental entities are imposed by the constitution upon a single set of municipal officers. Their duties, so far as they concern county government, are fixed by the constitution and; general laws, and as to these, the people o| the municipality have no power to legislate—(387, 388).</p> <p>The provision of seel 4 of art. XX, that the city council shall have power to fix the rate of taxation in each year, confers no power to limit the rate of taxation for county purposes—(388)'.</p> <p>The board of supervisors of the city an:d county of Denver, in -levying taxes for county purposes, perform the same office as the board of county commissioners, in other counties. They have authority, -and1 are under an absolute duty to determine the amount to be levied. And this1 authority is not limited by the provision of sec. 4 of art. XX—(386).</p> <p>The .levy of 3 .mills upon a dollar, for county purposes, approved, although the rate fixed by the charter had already been levied—('386, 387).</p> <p>' The provision of sec. 212 of the charter adopted by 'the people of . Denver, under authority of art. XX of the constitution, construed to apply only to taxes levied for municipal purpose®, and of no effect upon the power and duty of the board of supervisors, in fixing the rate of taxation for state and county purposes—(388).</p>

<p>r- 1. Public Office—Title to,-. Bow Contested—’The title to a,public office can be :eontestedi only in the special -proceeding- pro-, • vided by statute for the contest of am election, or by quo warranto— (395, 396).</p> <p>2. —'—Officer de facto—Plaintiff was elected assessor of the city and county of Denver, at an election, held at a time when, by the decisions of this court, such election was lawful (People v. Alexander, 34, Colo. 193). The duly qualified, was peacefully inducted into office, entered upon the discharge of his duties, and was recognized) by the public, and all officials Of the city and county of Denver as the assessor. The decision in People v. Alexander being afterward® overruled (People v. Cassiday, 50 Colo. 50S), he was forcibly expelled from his office by one appointed by the mayor, upon the assumption that the office was vacant. Held, that plaintiff mot being a party to the Cassiday case, was not concluded by the judgment therein, or the principles of law there announced-; that he was an officer de facto, and was not to be expelled as a mere usurper; that the expulsion was illegal, and that plaintiff was entitled to an injunction to restore him to the rooms, records and properties of the- office, and to restrain the adversary claimant from interfering with him in the discharge of his duties—-(394-400).</p> <p>3. Injunction-—To Protect an Officer de facto in His Office—An officer de facto forcibly ■ expelled from his office, and dispossessed of the records and properties pertaining thereto, by one claiming the office adversely, is entitled to an injunction to compel the restoration of such office and properties, and restrain the adverse claimant from interfering with him in the possession thereof, or in the discharge of the duties of the office, until his right shall be determined in quo warranto proceedings—(400).</p> <p>People ex rel v. District Court, 29 Colo. 277; Lawson v. Hays, 89 Colo. 250; People ex rel v. District Court, 1¡8 Colo. 1, distinguished.</p> <p>And the court declined to regard the adverse claimant as having gained an advantage !by the forcible dispossession of plaintiff, or as in such de facto possession of the office as to put ■plaintiff to quo warranto—-(405).</p> <p>4. Maxims—One Shall Not Have Advantage of His Own Wrong—One who, claiming to be entitled to a public office, forcibly assumes possession of the apartments, records, and other properties thereof, expelling one. w-ho is in peaceable possession of the office, and recognized by the public -a® such officer, will not be regarded by the courts as an -officer de facto, when the one so dispossessed applies for injunctive relief—(409).</p>

<p>Error to Teller County Court-^-Hon. Thornton H. Thomas, Judge.</p>

<p>Tax Titles—Void, Deed—A tax deed of lands, based upon a sale to the county, which fails to show the date of the sale, or ac&drding to which, if any date set down therein be accepted as the date of the sale, shows that the land was struck off to the county many days before the public sale began, is void upon its face.</p>

<p>Judgment—Record as Evidence—Where a judgment is relied upon as establishing a title, oh any particular state of facts, it must be proven by the complete record, or a duly authenticated copy of the entire proceeding.</p> <p>The rule is not changed by the provisions of the -code as to the pleading of a judgment or other determination of a court. (Rev. Code 1908, sec. 71.)</p>

<p>Fees—Sheriff’s trees—Under the statute (Laws 1897, c. 67 and Laws 1907, c. 177, Rev. Stat. secs. 1282, 2632) the sherifl conveying several prisoners to the .penitentiary or other place oí detention, is entitled to but one mileage for the service of the mittimus, no matter what may be the number of his prisoners. —(442).</p> <p>So he is entitled to but one mittimus mileage for all prisoners, who being convicted and sentenced, are ready to be transported at the same time, however transported, whether by separate trips, or otherwise—(442).</p> <p>But he is entitled to mileage -for each prisoner so transported, whether in onie or several trips—(443).</p>

<p>1. Attachments—Fraudulent Conveyance—The execution of a mortgage With the purpose to hinder or delay a creditor, affords ground for an attachment by such creditor, of the properties .of the mortgagor, even though the mortgagor has no purpose to eventually defeat the creditor ini the collection of. his demand, and even though the debt secured by the mortgage is a valid and subsisting liability—(447).</p> <p>2. Appeals—Finding on Conflicting Evidence, if supported by competent testimony, will not be disturbed—(447).</p>

<p>Criminal Law—Trial—Duty of Prosecutor to Present His Evidence in Chief.</p> <p>1. The prosecution in a criminal case ought to introduce in chief, the evidence upon which it intends to rely to establish affirmatively the defendant’s guilt—-(452).</p> <p>2. It is improper, in the trial of a criminal case, to call witnesses in rebuttal to prove what belongs to the people's case in chief, without any reason therefor—(452).</p> <p>3. The people’s evidence on rebuttal is generally confined to testimony having a tendency to contradict or disprove the evidence of the defense; but the court in its discretion may admit new evidence in chief at any stage of the trial, and it is often necessary to do so in the furtherance of justice. It would be an abuse of discretion, however, to allow the introduction of evidence under the guise of rebuttal which belonged to the people’s case in chief, intentionally held back until after the defense had rested-—(452).</p> <p>4. The introduction of evidence in chief, oni rebuttal, does not change the character of the testimony*—(452).</p>

<p>1. Writ of Error—A Writ of Right—Legislative Control— By the adoption of the common law (Rev. Stat. sec. 6295) the writ of error was brought into our jurisprudence, but subject to legislative control—except as applied! to the judgments of the county courts—and 'it ought not . to be taken away by any implication or construction. Held, therefore that the statute allowing an appeal or certiorari from either the county court or district court, to the supreme court, in probate matters (ReV. Stat. sec. 7254) is not to be construed as excluding the writ of error, but merely as affording remedies cumulative thereto—(458).</p> <p>2. Statutes—Construction—A statute allowed an appeal or certiorari from either the district or county court to the supreme court, in probate matters. By the constitution a writ of error lies out of the supreme court to review all determinations of the county court. Held, that inasmuch as to construe the statute as denying writ of error to the county court, in such cases, would render it unconstitutional, it was not to be so construed as applied to the determinations of the district court—(457, 458).</p> <p>3. -Expression of One Thing as Excluding Things Not Expressed—A statute giving remedies not given by the common law, e. g., an appeal or certiorari to review any final judgment in probate matters, does not take away the writ of error given by the common law—(458).</p>

<p>Constitutional Law—Taxation—Glassification for Assessment—Mines—-Exact uniformity in the valuation of property for the purpose of taxation is impossible. Rules prescribed by the legislature for the valuation of different properties, not- clearly calculated to produce gross inequality and injustice in the assessment of different properties of the same class, will not be set aside by the courts. Properties of the same general character may be divided into classes, and different classes may be valued by different methods, provided, by the method as to a particular class, the burden of taxation is uniformly imposed upon all properties in that class, is just and equitable, and no property is exempted from its fair proportion of the common burden. Mines producing the precious and valuable metals may be placed in a class separate from mines of coal, iron, asphaltum, quarries of stone, and the like; and mines of the precious metals may be divided into those which are producing, and those which are not; and the assessor, in the valuation of nomproducing mining property may be required to take into account the proximity thereof to other mines, an:d may be prohibited' from assessing a non-producing mine at a greater sum per acre than is assessed against the lowest producing mine or mining claim situate in the same locality. The provisions of secs. 5617-5620, 5625, 5665 of the Revised Statutes are not unconstitutional— (467-473).</p>

<p>1. Judgment—Collateral Attack—What Is—Plaintiff in 'a bill to quiet title relies upon a sale under execution, issued upon a judgment by default recovered in an action in which the service was by publication. Defendant assails the judgment on the ground that, by reason of defects in the affidavit for publication, no jurisdiction of the person was acquired. Held a collateral attack—(477).</p> <p>2. -Presumptions to Support—Against collateral attack the judgment of a court of record is supported by the conclusive presumption that jurisdiction was obtained of the party against whom judgment was pronounced, unless the contrary affirmatively appear by the record.</p> <p>Mere absence from the judgment roll of proofs which ought to have been included is not sufficient—(477).</p> <p>The rule applies in cases instituted by attachment—(477).</p> <p>3. Tax Titles—Void Deed—A tax sale of several non-con.tiguous tracts of land for a gross sum is void; and a deed which shows this upon its face is void—(477).</p> <p>4. ——Statute of Limitations—A deed void upon its. face does not set in motion the five years statute of limitations. (Mills’ Stat. sec. 3904, Rev. Stat. sec. 5733.)—(478).</p> <p>5. -Tax Deed Not Recorded—Color of Title—A tax deed not recorded does not constitute color of title so as to set in motion the seven-year statute o-f limitations. (3 Mills’ Stat. sec. 2923-C, Rev. Stat. sec. 4089)—(478).</p> <p>6. -Color of Title and Payment of Taxes Must Concur— Payment of taxes for seven years, during a part of which the party has no color of title, does not har the action of one having the paramount title—(479).</p>

<p>Replevin—Against Wihom the Action Lies, only against one actually or constructively in possession of the goods, at' the institution of the action, unless, prior thereto, and subsequent to demand for possession, he has concealed] or disposed of them for the purpose of avoiding the writ and defrauding the plaintiff of his rights—(483, 484).</p> <p>Plaintiff had delivered certain junk to the defendant, a railway company, for carriage. Before his demand for it, it had, as he knew, been taken into possession by a constable, as stolen property, and had afterwards been delivered to the sheriff. Held, it was. the plaintiff's duty to assert his rights by proceedings against these officials; that he had no action against the rail-road company— (484).</p>

<p>1. Duress—Evidence to Establish—Oral testimony to establish such coercion as will avoid the written engagement. oí parties must be reasonably convincing. It must appear that the party was compelled to enter into the contract by illegal acts of the other, and that the engagement was not his voluntary act. —(493).</p> <p>The evidence examined and held insufficient to establish duress—(493, 494).</p> <p>2. -Effect—A contract made under duress is not void, but valid until disaffirmed—(494).</p> <p>' 3. -Threats to do What One May Lawfully do, not duress. — (494).</p> <p>4. -Ratification—A. contract obtained by duress is ratified by accepting benefits growing out of it, or by acquiescence for any considerable time, with opportunity to assail it—(494).</p>

<p>1. Master and Servant—Master’s Duties as to Place of Work—The employer is required -to use ordinary care to make the -place where the servant works reasonably safe. The rule extends to the way by which the servant must go to and from his work, and to and from all places to which as the master knows or ought to know, the servant is accustomed to. resort while at work, e. g., to and from the place where drinking water is kept, and to and from the water closet—(498).-</p> <p>Plaintiffs intestate, a miner emlployed in defendant’s mine, was set to work at a place where he had never been before and of the dangers of which he was not informed-. To reach the place he was required to pass through a wide stope, semi-circular in form, along an elevated railway track, planked for most of the distance, on both sides of the track, and between the- rails, except where there was an open.ore chute of twenty-five or thirty-feet in depth. The track at -one place made a sharp turn. The ore chute was neither guarded or lighted. The place had been in this condition for about three months. In going to the place of work the deceased followed other miners who were acquainted with the way. Later he left the place of work, carrying a lighted, candle, the usual and only means of light -provided, fell into the chute, and received the injury from which he died. Held, that plaintiff was entitled to go to the jury, and that to direct a verdict for defendant was error—(498).</p> <p>2. --Servant’s Assumption of Risk—The servant assumes the risk of those dangers only of which he is informed,, or by reasonable circumspection and care would have known—(499).</p> <p>3. Contributory Negligence—'When for the Jury—In actions for negligence the question whether plaintiff was guilty of contributory negligence is for the jury, where the evidence is such that different intelligent men may honestly draw different inferences therefrom—(499),</p> <p>4. Bill of Exceptions—Requisites—Plaintiff’s bill of exceptions contained no averment that it presented all the evidence;but it bore the certificate of the stenographer- of the court to tfiat effect, it was approved by defendant’s counsel, and the judge’s certificate stated that it was tendered to him with the request that it be signed, sealed, etc., “all of which' is accordingly done”—(499, 500).</p> <p>Held, to adopt the stenographer’s certificate and in connection with the approval of defendant’s counsel, sufficient to show that all the evidence was preserved—(499, 500).</p>

<p>1. Pleadings—Motion for Judgment on Pleadings—Waiver— A party who, after his motion for judgment on the pleadings is denied, goes to trial, attempting to establish his right by proofs, waives the motion—(505).</p> <p>2. -Amendment—Where at the conclusion of the plaintiff’s case the defendant tenders an amended answer, putting in issue the question to which the plaintiff's testimony has been directed, the amendment should be allowed—(505, 506).</p> <p>3. Contract—Construed—A partnership, by a written agreement transferred to a corporation “all the assets real and personal” of said firm, “standing in our name and now a part of the property of the firm.” An inventory was referred to and it was declared that the property sold includes “good will, all leases, outstanding moneys accounts, contracts, choses in action, patents or inventions incident to the business . . . whether included in said inventory or not, and all things in general owned or used by said firm in the conduct of its business.” Held that the purchase included the plant of the partnership with the fixtures, appliances, machinery, moneys, accounts and assets, connected therewith, and incident thereto; that the stock of another corporation, earned prior to the sale, the existence of which was unknown to the corporation, at the time of the purchase, was not included, even although such stock still stood in the partnership name; that not being known to any officer of the corporation purchasing, such stock could not have ’befen' 'réliéd upon as a consideration inducing the purchase—(506-508'). •</p> <p>4. -Construction by Conduct of Parties—Held,. in¡.th© same case that the corporation, having accepted- the plant and appliances, and conducted the business for almost two years without objection, had in effect admitted that it was entitled to nothing more; that such conduct was a virtual interpretation of the contrcat—(508).</p>

<p>1. Evidence—Admissions in Pleading—(What is admitted by the pleadings need not be proved—(511).</p> <p>2. —■—Value—Of Unmarketable Things—In an action to recover the value of the parts of a broken bridge, evidence of the value thereof to the county, the value of new material of like character, and the present condition of the property, may enable a jury to find the value—(511).</p> <p>3. Tbiar—Motion for Non-Suit—Effect—‘Defendant ' who moves for a non-suit, offering no evidence, waives a counterclaim which he has interposed. The court is not under duty .to instruct as to the issues presented by pleading not supported by any evidence—(511).</p>

<p>1. Summons—Service by Publication—Affidavit—To support a judgment by default, upon mere publication of the summons, the affidavit to secure -the order of publication must show, not only the non-residence of the defendant, but his post office address, or state that the same is unknown. To state merely that the residence is unknown is not equivalent to a statement that the post office address is unknown. (Rev. Code § 45.)— (514, 515).</p> <p>A judgment entered upon service so had is without effect or validity, and no judgment at all.</p> <p>It is not error in the court to vacate it at any time.</p> <p>2. -Amendment of Affidavit—Nearly four years after the entry of a final decree by default, upon mere publication of sum. mens, the plaintiff applied for leave to amend the affidavit upon which the order of publication had been granted. Before this motion- was heard -the defendant, appearing specially, moved to vacate the judgment. The motion to amend the affidavit was held properly denied, in view of the circumstances—(515).</p> <p>3. Quieting Title—Answer—An answer to a bill to quiet title admitted the adverse claim of defendant, denied all the other allegations of the complaint, alleged- that defendant was the owner of the land in fee simple, and in possession thereof, and that plaintiff’s claim was based upon a void tax title. Held, sufficient—(516).</p>

<p>Error -to Elbert District Court.—-Hón. W. S. Morris; Judge. ■ .</p>

<p>Judgment affirmed on the authority of case No. 7183 ante p. — (517).</p>

<p>•Divorce and Alimony—Modification of Decree for Alimony— Writ of Error—Limitation—Where a • modification* of a decree awarding alimony is sought, the application, though made in the same case, is upon a petition asserting newi facts, and. upon a new notice—(526).</p> <p>And the judgment of the court thereon is a final judgment -to which a writ of error lies from this court—(526).</p> <p>The period .within which such writ of error must be sued out begins with the entry of the modified judgment—(526).</p>

<p>Eminent Domain—Damages to Land Not Taken—‘Both, the constitution (art. II, sec. 15) and the statute of Eminent Domain (Rev. Stat. sec. 2431) contemplate that compensation shall be made in money to one who by a public improvement sustains injury to lands not taken. The land owner cannot be required to accept a structure or device of the petitioner, intended to lessen such damage, and which is no part of the improvement for which his land is taken—(531-533).</p> <p>The land owner is entitled to make such provision for himself, and receive as an element of his damages what it will cost him—(532).</p> <p>The petitioner sought to condemn, through lands of the respondent, a way for an intake ditch. The line of this structure was located in porous and sandy soil. Below it were improved lands of respondent, liable to injury by seepage from the proposed ditch. Held, that in ascertaining the damages which respondent might sustain by such seepage the jury were not to take into account another and separate ditch constructed by petitioner, below that in question, and which it was alleged would collect the seepage—(529-532).</p>

<p>Error to Boulder District Court.—Hon. Harry P. Gamble, Judge.</p>

<p>1-. AjPPeaiiS; aNd Writs of Error—Practice—A, motion to strike out a biil of exception® must be seasonably made; if..not interposed until months after the objecting party has filed his brief upon the merits of the cause- it will not be entertained— (544)........</p> <p>2. -Second Appeal—Law of the dase—What is declared upon a question essential to the decision, upon a first appeal of writ of error, is’ the law of the case, and will not be departéd from, upon a second appeal—(545).</p> <p>3. -Findings .on Conflicting Evidence, will not be .disturbed—(545).</p> <p>4. Tenants in Common—Bights in the Common Property— O'ne co-tenant using the common property for his- exclusive benefit’is liable to the other for the reasonable value of -the.use of the latter’s interest—(545).</p> <p>5. . Evidence—Sufficiency—Plaintiffs and defendants were tenants in common) of a mining claim- through which a tunnel had' been excavated. Defendant had for a- considerable time’/ removed, through this, tunnel, the waste, rock from other mining premises owned by him in severalty.. Plaintiff brought an action to be compensated -for this inordinate use of the common -property. ‘The tunnel was less than fifteen hundred- feet in length. Defendant excavated more than one thousand feet .thereof, and laid; the tracks through the whole length, of the tunnel, at his own-cost, and he provided the power and the cars used in removing the waste from his private premises. Held, that evidence that what the owners of other tunnels of much greater length charged, per ton, for removing waste, they furnishing the cars by which the removal'was effected-, and the power by which they operated, transporting, dumping and returning such cars, afforded no basis for- a computation as to what defendant should be required to pay—(5-16-548).</p>

<p>" 1. Deed of Trust—Appointment of Substitute Trustee, must follow the terms, of the deed of trust. Where a deed of trust of lands provides that in. certain cases specified a substitute trustee may be appointed, one who, assuming to act as such substitute executes a conveyance of the land under the powers of the deed of trust, must recite am appointment conforming to the provisions of the deed of trust. Otherwise his conveyance is not even prima facie evidence of title, unless the appointment is established by evidence aliunde the deed—(551).</p> <p>2. -Limitation—That an action at law upon the indebtedness secured by deed of trust is barred by limitation is no bar to the execution of a power of sale contained in the deed—(552).</p> <p>3. Quieting Title—Plaintiff’s Title, must be established, even though defendant shows no title—(552).</p> <p>i. Pleadings—Amendment—Where an original answer has not been" attacked defendant is not at liberty to file an' amended answer without leave of court—(552)/</p> <p>5. -Statute of Limitations, is a strict defense, and should be pleaded in apt time. Ordinarily this defense will not be admitted by amendment. What constitutes apt time depends upon the circumstances of the case. The case made by defendant, Held, sufficient to entitle him to interpose the defense by amendment—(552, 553).</p> <p>6. --Color of Title—A void deed may be color of title— (553).</p>

<p>1. Cloud Upon Title—Who May Sue to Remove—Any one having an equitable interest in the land, e. g., the beneficiary in a deed of trust, or the trustee—(556, 557).</p> <p>2. -Limitation—Neither section-4072 nor 4073 of the Revised Statutes, 1908, have any application to a bill to remove cloud from title. They relate to personal actions only—(557). —(559).</p> <p>Nor can sec. 5733 of the Revised Statutes be invoked, where the sole purpose of the action is to remove a cloud upon plaintiff’s title, not demanding possession. Williams v. Cowroy, 35 Colo. 117; Wood v. McOombe, 37 Colo. 174; HaTb.ouer v. Quenin, 45 Colo. 5(37, distinguished.</p> <p>Doubted whether any statute now in force limits an action by one in possession of land, to remove- cloud from a title. Where the land is vacant, or in adverse possession of a defendant, a plea of payment of .taxes for seven years, under claim and color of title for that period, made in good .faith, would be a bar —('559).</p> <p>. 3. -Historical■—Until the act of 1874 (Laws 1874, 177), there was no statute imposing any limitation upon actions concerning realty—(558).</p>

<p>1. ' Constitution Law—Article XX—The purpose of article XX'was to give to the people of the city and county of Denver exclusive control in matters of local concern only. Where the constitution and general laws are not set aside by express words, or necessary implication, they are as much in force in the city and county of Denver as in other portions of the state. The people of Denver have no power whatever to legislate by their charter on matters of state-and county governmental import—(568).</p> <p>2, -Power to Regulate Elections—The only special power upon the subject of elections conferred by article XX upon the people'of Denver, beside the permission to use the automatic voting register, is to iix the term, which includes the time, of elections, and to designate the officers who within the municipality, ns agents, perform the functions of the state and county government.</p> <p>All elections are public in character, of governmental and state-wide importance, rather than of local interest, and therefore must be under the control and regulation of the constitution and general laws—(569).</p> <p>The right of the elector to be safeguarded in the exercise of his franchise—a right conferred by the sovereign authority of the state—carries with it the corresponding duty, on the part of the state, to furnish all needed protection. This is of public concern; therefore, even municipal elections are within the provisions of sections 3c., 26, of the act of May 30, 1911, regulating elections—(510;.</p> <p>The judgment of the district court awarding mandamus to - the election commission of Denver, requiring them to appoint temporary registration committees for the municipal election then approaching, from lists furnished by the chairman of the two political parties having cast the highest number of votes for governor at the last preceding general election, as required by the act of May 30, A. D. 1911 (Laws 1911, c. 127) affirmed—(563, 571).</p> <p>The constitution (section .11, article VII) requires the General Assembly to pass law's to secure the purity of elections. It imposes this particular duty upon the General Assembly, and not upon any municipality; and this duty the state cannot perform if exclusive- power to regulate and control municipal elections is, by article XX, vested in the peqple of the municipality of Denver.—White, X, concurring—(572). Muksei:, X, dissented.</p>

<p>1. Pleadings—Complaint—Splitting Cause of Action—A fire set out by the locomotives of a railway company destroyed certain buildings which were insured under a policy providing that if the insurer should claim that the fire was caused by any other person or corporation the insurer should be subrogated, to the extent of its payment, to the right of recovery of the insured,, against the culpable party. The insurance company paid the ¡amount stipulated for by its policy, and the railroad company, which was charged with having occasioned the loss paid the ; residue of the owner’s damage. The insurance company, under an assignment by the insured of his cause of action, made pursuant to a stipulation of the policy, then brought an action against the railway company l'or the amount of the insurance money. There was no splitting of the cause of action—(593, 594).</p> <p>2. Railway Companies—Liability for Fires—Ever since the act of January 13th, 1874 (Laws 1874, 224, Gen. L. 1877, 740), every railway company has been liable absolutely for damage •occasioned by fires set out in operation of its road. The act of 1903 (Laws 1903, c. 153), works no change in this respect—(595).</p> <p>3. Ins dean ok—Right of Insurer to Subrogation•—-Prior to the act of 1903 (Laws 1903, c. 153, Rev. Stat. sec. 5512), an insurance company discharging the loss of a policy holder whose property was destroyed by fire set out by a railroad company was entitled to be subrogated to the claim of the policy holder against the railroad company, whether the fire was occasioned by negligence or without negligence. The act of 1903 is without effect to take away this right under contracts of insurance entered into prior to its passage (1) because, if so construed, the ■act is unconstitutional as impairing the obligation of the contract, (2) because, so construed, it is retrospective in operation, (3) because rights accrued under prior contracts are expressly excepted by the last clause of the statute—(597—600).</p> <p>The right of the insurance company to he subrogated, being ene of the considerations upon which the policy tested, vested at the date of the contract—(598).</p> <p>4. Constitutional Law—■Retrospective Statutes—A statute will not be given retrospective operation, unless this clearly appears to have been the legislative purpose—(600).</p> <p>The act of April 9th, 1903 (Laws 1903, c. 153), if applied to prior transactions, so as to defeat the right of an insurance company, stipulated for in its policy, to be subrogated to the right of the insured against the party causing the loss, changes the obligation of the contract, and falls within the inhibition of the federal constitution. The statute is therefore to he construed ¿s prospective only—(598).</p> <p>5. Statutes—Construed—The phrase “any right which has accrued,” in the final clause of c. 153 of the Laws of 1903 is to be taken in its ordinary sense, meaning any right in' existence before the passage of the act. A stipulation in a policy of insurance issued before the passage of the statute, that the insurer should be subrogated to the right of recovery of the assured against the one causing the loss is excepted from the operation of the statute, even though no fire had occurred, and no loss had been sustained, when the statute took effect—(600). . ‘</p>

<p>1. Divorce—Alimony—Practice■—-The better practice is to include tbe award of alimony in tbe decree of divorce; but the court may enter a decree of divorce, reserving the question of alimony to a future day. The award of alimony whenever made, is regarded as part of the decree of divorce, an incident, of which the other is principal—(603).</p> <p>3. -Appeal from Decree of Divorce—Effect—An appeal from the decree of divorce, in such case, stays all proceedings in the district court, relating to the award of alimony, even though in the decree of divorce the court expressly reserves the question of alimony—(604).</p> <p>A decree awarding alimony pending such appeal is void, no matter what may be the result of the appeal—(605).</p> <p>3. Referee—When the Court May Appoint—Under the provislpns of Rev. Code secs. 222, 223, the court has no power, without the consent of parties, to'appoint a referee to try and determine the issue whether conveyances made- by one of .the defendants to others were fraudulent as to plaintiff—(605).</p> <p>4. —!—Consent by, Appearance—rBut if the parties appear before the referee and participate in the trial without objection they are estopped to question the' appointment—(606).</p> <p>5. Judgment—Void—Due Process of Law—A,, judgment which assumes to divest the private property of one not a party to the cause is void—(607). - , •</p> <p>6. .Parties—Indispensable—Where it is sought to divest one of'his title to property he must have due notice of the proceeding and opportunity to defend. He is an indispensable party, independent of any provision of statute—(608).</p>

<p>1. Taxation—Enjoining Collection of Tax—Public interest, statutory enactment, and judicial announcement, are opposed to interference by injunction with the collection of public revenues. Whoever seeks such relief must bring his case within some recognized ground of equitable jurisdiction. Mere errors, excessive valuation, the hardship or injustice of the law, or any grievance which can be remedied by an action at law, either before or after the payment of the tax, will not justify interposition by injunction—(612, 613).</p> <p>2. Counties—Board of Commissioners—Contracts—Validity —The commissioners of Bent County in August, 1904, let a contract for the repair of a certain public bridge. There was then upon hand in the proper fund a sum sufficient to defray the contract price of the agreed repairs. The contract was a lawful one, ■though the particular work in question was not in contemplation at the time of levying the tax by which thé fund was created, even though the fund had been exhausted in necessary repairs of other bridges and public roads before the repairs contracted for were completed, so that warrants therefore could not be issued, and though it was known at the time of the contract that the amount in the fund would be otherwise consumed if the ordinary ■and necessary repairs to the public roads and bridges were carried on; and it was immaterial what occasioned .the necessity of these repairs, which absorbed the fund, or what knowledge the •commissioners had of this necessity—(616).</p> <p>The levy of a special tax to discharge the amount due under the contract in question was held to be authorized by sec. 4 of the act of April 1, 1891, (Laws 1891, 112) —(617).</p> <p>3. Taxation—Counties—Authority to Levy Special Tax to Pay Floating Debt—So much of sec. 4 of the act of April 1, 1891, (Laws 1891, 112) as authorized the levy of a tax for paying outstanding warrants and floating indebtedness is still in force, notwithstanding the provisions of chapter 133 of the acts of 1899.</p> <p>And such levy may be made though the indebtedness has not •been reduced to judgment—(618).</p> <p>4. -Construction of Levy—A levy was designated as “For Special Fund.” The amount to be raised thereby was, by ■resolution of the board, adopted .pursuant to the statute (Laws 1891, 111, sec. 1, Rev. Stat. see. 1215) appropriated, “For liquidation,. payment and redemption of unliquidated and unpaid •amounts”-—(619).</p> <p>Held that the levy and the appropriation were to be construed together, and as thus considered the levy was made certain—(619).</p> <p>5. -Supreme Court—Stipulation of Counsel as Conferring ■Jurisdiction—Action to restrain the collection of a special tax. The complaint showed no grounds of equitable jurisdiction; but ■counsel had stipulated that if the tax was adjudged illegal the injunction should be perpetuated. In view of this stipulation the •court investigated the legality of the tax, but it was declared that in another like case this would not be regarded as a precedent—(614, 615).</p>

<p>1. Practice—Buies of Court—Setting Cause for Trial— Attorneys are bound to take notice of the rules of the courts in which they practice-—(621).</p> <p>The district court may prescribe by rule that causes once set for trial and not reached during the term, will be set without notice for the following term. It is the duty of counsel to keep advised of the disposition made of a cause once set down for trial, and he fails therein at his peril—(621).</p> <p>2. ——Vacating Judgment—Excusable Neglect—An application to vacate a judgment because taken in the absence of counsel, though, the cause had been regularly set down, is addressed to the discretion of the court, and its action will not be disturbed unless it clearly appears that an arbitrary and unjustifiable discretion has been exercised-—(622).</p> <p>3. -Agreements of Counsel—The rule is the same where relief is sought against a judgment on the ground pf an alleged stipulation of counsel, as to which the evidence heard below is in hopeless conflict—(622).</p>

<p>Minins Claim—Location—Time for Completion—The rule announced in Ingemarson v. Coffey, 41 Colo. 407, that the locator of a mining claim cannot by re-loeatiom extend the time for completing his location, is without application where no right of third persons has intervened. If everything required by the statute is done and, completed before other rights intervene, this-suffices—(626).</p>

<p>1. Bridges—Duty of Owner of Ditch to Construct—Statute Construed—Under sec. 38 of the act of March 9, 1883, (Laws 1883, 261) and the amendment thereof by act of March 16, 1885, (Laws 1885, 324, Rev. Stat. sec. 5829) one owning a ditch over which, subsequent to its original construction, a public highway is laid out, and which by subsequent enlargement acquires a width exceeding twenty feet, must maintain, as part of the highway, a bridge at such point of intersection—(631).</p> <p>The phrase “constructing any ditch”, applies as well to an enlargement as to original construction—(632).</p> <p>2. Action—Assumpsit—Money Paid for the Use of Another —The owner of an irrigating ditch refuses to construct a bridge where it crosses a public road, as he is required by statute to do. The county constructs such bridge at its own cost. The moneys expended may be recovered by the county—(632).</p>

<p>Judgment—Effect As An Estoppel—¡Where an action in which the plea of res judicata is interposed is upon á different demand from that presented in the action in which the judgment was given, such judgment operates as an estoppel only as to those matters which were in fact in issue; it does not extend to matters which might have been litigated and determined, but were not—(636).</p> <p>The rule is the same, though the several demands grow out of the came contract—(637).</p>

<p>Trial—Directed Verdict—Where there is substantial evidence tending to establish a cause of action, or a defense thereto, it is error to direct the verdict against the party producing such evidence. It is not for the court to judge of the sufficiency of the evidence—(639).</p>

<p>1. Appeals and Writs oe Error—Presumptions—The rule that error is presumed preludicial is not of universal application. Where in. a bill for a partnership accounting the testimony-heard by the referee was reported in full and presented in the record it was held that error in the referee’s finding that the partnership was dissolved, was not prejudicial if the statement of the account was correct; that this was the real matter in -controversy, and that the partner complaining had the burden of showing that the judgment as finally entered below was erroneous to his prejudice—(641, 642).</p> <p>2. -Harmless Error—A. wrong reason for a correct result is harmless—(648).</p> <p>3. Partnership Accounting—Managing Partner Employing the Firm Property for Private Gain—Where, the partnership subsisting, the managing partner applies the firm properties to his private purposes, he should not thereafter be allowed salary, nor should the firm be charged with his disbursements except as they relate to partnership indebtedness previously contracted. And the managing partner is to be charged a reasonable rental for the occupation and use of the partnership properties,- even though the total production thereof does not equal a reasonable rental—(649).</p> <p>And lie is of course to be charged with monies received from the sale of partnership properties.</p> <p>The rule for the partnership accounting is the same even though the other partner withdrew from participation in the enterprise, without any just cause. The partnership property still retains its character as such, and is to he treated accordingly in the account—(650, 651).</p>