Volume 53 — Colorado Reports

<p>1. Evidence — Parol to Vary Writing — A broker employed to find a purchaser for certain securities, takes from his client an option in writing entitling him to purchase the securities for a specified sum, to he paid within a specified time. He assigns this option to a third person, who tenders the stipulated sum at the place, and within the time, prescribed in the option. The broker suing for his commissions is entitled to show that the option was taken with the understanding on the part of his client that the party to whom, it was assigned,. and not the broker, was the purchaser, and that the assignment was made in pursuance of an arrangement with his client that it should be so assigned. Such evidence does not tend to vary the terms of the writing.</p> <p>2. Appeals — Party Bound Toy Position Below — Where'in the court below- certain writings are treated as in evidence, e. g.- by objections to oral evidence, by reason of such writing, as concluding all previous negotiations and discourse, he will not be heard to urge in the court of review that the papers were not in evidence, even though the'record fails" to disclose ahy formal offer- thereof. • '</p> <p>3. Contracts — Consideration—A contract reciting the payment of one dollar “and other valuable considerations,” etc., shows a consideration, and nothing appearing to the contrary the contract binds the promisor.</p> <p>4. -Binding Upon Executor — The death of one who has employed a broker, and through the efforts of the broker has entered into a binding contract to dispose of the subject matter of the broker’s employment of which the broker afterwards tenders performance, in no manner affects the rights of the broker; performing his contract of employment, the personal representative is liable to him for his commissions.</p> <p>5. --Who May Assail Validity — Only the parties to a contract, or those standing in privity with them or one of them, can question its validity. One holding an option to purchase certain securities treats it as assigned to another, who acts accordingly. The executor of the one granting the option will not be heard to deny the assignment.</p> <p>6. Broker. — Right to Commissions — A broker employed to find a purchaser for certain securities, does not entitle himself to a commission by producing one who merely accepts an option; but if such purchaser subsequently tenders performance of the contract, in accordance with its terms, the executor of the vendor is liable to the broker.</p>

<p>. 'Contracts — 'Validity—The purchaser of lands agrees, as part of the transaction, to pay a certain specified sum towards the commissions. of the broker who acts for the seller — the seller knowing and assenting to the arrangement. The promise is a lawful promise and the purchaser is liable to the broker for the sum promised. — Finnerty -v. Fritts, 5 Colo. 174, distinguished.</p>

<p>Mrror to Denver County Court. — Hon. Clifton R. Bassell, Judge.</p>

<p>Error to Washington County Court- — Hon. Ira M. Barnhouse, Judge.</p>

<p>Error to Routt County Court. — Hon. Charles A. Morning, Judge.</p>

<p>•Error to Denver District Court. — Hon. GrEEEEY W. Wi-iiTFoRd, Judge. .</p>

— Hon. Henry Hunter, Judge. The parties to this appeal entered into the following contract: “This agreement, made and entered into by and between Charles Hoagland, of the county of Las Animas, and state of Colorado, of the first part, and P. H. Murray, of the same place, or the second part, WITNESSETH; The party of the first part agrees to convey to the party of the second part, within twenty-four months after date, lots one, two, three and four, block nine, Grass apd…

<p>1. Constitutional Law — Railway Commission — The general assembly has power to create a commission with authority to regulate and control common carriers doing business within the state, and fix tne rates to be charged for their service.</p> <p>2. -Presumptions as to Constitutionality of Legislation — The presumption is that every- statute is a constitutional enactment, and this presumption is not overcome until the contrary appears to a demonstration.</p> <p>3. -Classification in Legislation — If a classification adopted by the legislature is not wholly arbitrary and unreasonable, and if the statute is uniform in its operation upon all the members of the class to which it is made applicable no one is denied the equal protection of the law. All that is necessary to uphold the statute is -that an actual, reasonable, and substantial difference is discovered; such difference existing, it is for the legislature to determine whether different rules shall be prescribed for the different classes of subjects.</p> <p>A. statute providing for the appointment of a commission with authority to control railway companies and other common carriers (Laws 1907 c. 208 sec. 1, Rev. Stat. sec. 5445) excepted from its operation mountain railroads operating “less than, twenty miles of road, the principal traffic of which is the hauling of mineral from and supplies to mines.” Held, that in view of the differences between such railways and ordinary railways, in respect to location, length, character of traffic, cost of construction and maintenance, that the excepted roads are singular in being subject to frequent interruptions and losses by reason of avalanches, that the ores transported by such railways are not a subject of merchandise, that such roads depend for their life of utility and profit upon the permanency of the mines which they serve, and which is continually diminishing, the classification adopted by the legislature is not an arbitrary one, but rests upon a reasonable basis.</p> <p>4. Appeals- — Grounds of Decision — The courts of review will not in any case go beyond.the record in that case to discover grounds upon which to declare a statute unconstitutional.</p> <p>5. Statutes — Construction—An act which assumes to regulate common carriers and repress extortions and unjust discriminations and preferences is to be liberally construed. The title of an act may be referred to to aid in its interpretation.</p> <p>6. -Construed — A statute for the regulation of common carriers provided for the appointment of a commission, with power, “to execute and enforce the provisions of this act”; declared that all charges for the transportation of property shall be just and reasonable; that upon complaint to such commission, by any person, of anything done or omitted by any carrier “in contravention of any of the provisions” of the act, the commission, if satisfaction were not made by the carrier, should, if reasonable grounds of investigation appeared, "investigate, the matters complained of,” and report their “decision, order or requirement in the premises”; and the commission were authorized, and it was declared to be their duty, if upon hearing of the said complaint it should be of the opinion that “any of the rates or charges complained of, and demanded, charged or collected * * * or that any regulation or practice whatsoever of such common carrier or carriers affecting such rates or charges, are unjustly discriminatory or unduly preferential in violation of any of the provisions of this act, to determine and prescribe in what respect and to what extent such rates or charges are so discriminatory or preferential, and what regulation or practice in respect to such transportation is just, fair and .reasonable to be thereafter allowed, and to make an order that the common carrier shall cease and desist from such violation to the extent to which the commission finds it to exist, and such common carriers shall thereafter conform to the regulation or practice so prescribed” (Laws 1907 c. 208 secs. 12, 13, 14, Rev. Stat. sec. 5456-5459). Held, that the power of the commission as to rates, is not confined to the regulation of those which are discriminatory or preferential, but extends to those which are unreasonable; that upon any such complaint the commission is authorized to fix a reasonable rate of charge to be thereafter observed by the carrier.</p>

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

<p>1. Evidence — Circumstantial Evidence — The prisoner entered a i-estaurant shortly before the hour of closing, and while the cashier was counting the receipts of the day. He held a revolver in his hand, and a large handkerchief .hung loosely about his neck. He took one step forward, glanced hastily towards the rear of the room, raised the handkerchief so as to cover his face except the eyes, turned towards the cashier, and as deceased rose to confront him, ordered him to throw up his hands, and at once discharged his 'revolver inflicting a mortal wound. He had on the prior evening, and at about the same hour, been observed looking into the restaurant, in range with the cash register.</p> <p>Held in view of sec. 1609 of the Rev. Stat. that direct evidence was presented of an intent to commit robbery, and that under sec. 1624 of the Revised Statutes the jury might award the penalLy of death.</p> <p>2. -Order of Proof — It is in the discretion of the court to receive in rebuttal evidence which properly should have been presented in chief. Unless it appears that prejudice to the accused resulted the court of review will not interfere.</p> <p>3. New Tbiax — Misconduct of Counsel — In the prosecution of one accused of the crime of murder alleged to have been committed in an attempted robbery, the district attorney, exhorting the jury to a conviction, and an award of the death penalty, said to them, “It is time for this series of crimes to stop. Men sent to the penitentiary seldom serve their sentences”; and when counsel lor the prisoner objected to his line of remark, he exclaimed; “I thought you would object to-that”; and later when prohibited by the court from pursuing the argument, said to the jury: “This is a good place to stop. It seems-to hurt.” Held, highly improper and deserving a sharp rebuke from the court. But the court declined to hold that the jury could have been influenced thereby to render a verdict not based upon their honest convictions as to the effect of the testimony.</p> <p>In the same case the prisoner testified that he went to the restaurant to collect money which he had deposited with a young woman whom he thought was dining there with a male escort; that he carried the gun to frighten the escort, and to defend himself, if attacked by the escort. Upon this feature of the .testimony the district attorney, in the closing argument, insisted that the prisoner by his own testimony had admitted an attempt to rob. Counsel for the prisoner objecting to this line of remark, the district attorney again insisted to. the jury that the prisoner by his statement went to the restaurant to obtain money by force, and that whether it was his own money or the money of another was immaterial. Held, that the argument of the district attorney was improper and should have been stopped by the court; but the court having at the time of the objection, called attention to the instructions which the jury would take with them to the jury room, refusing to speak verbally as to the question of law which the objection presented, it was held that by this, the jury must have understood that they should entirely disregard what was said by the district attorney upon this matter, both before and after the objection.</p> <p>4. Murder — Heath Penalty — Statute Construed — The act of March 17, 1911 (Eaws 1911 c. 195) has not the effect to repeal see. 1624 of the Revised Statutes, as to male persons between the ages of sixteen-and thirty years.</p>

<p>Error to Denver, District Court. — Hon. Hubert E. Shattuck, Judge.</p>

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

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

<p>.1. Constitutional Law — Art. I, sec. S — The amendment to sec. 3 of art. xi. of the constitution (Laws 1909, c. 148) providing for the issue of bonds for discharging outstanding warrants of the state, that certain executive officers shall constitute a hoard to determine the amounts fairly and equitably payable out of this fund upon the warrants, and that upon their report to the auditor, certain other executive officers may exchange the bonds for an equal amount of the warrants, hut with no provision which compels the holder of any warrant to accept the bonds in lieu of money, has not the effect to deprive any person of property without due process of law.</p> <p>Nor is it in conflict with the provisions of the constitution relating to the distribution of the powers of government (art. III.) as conferring judicial powers upon executive officers.</p> <p>Nor in conflict with sec. 4 of the same article.</p> <p>Nor with sec. 3 of art. IX.</p> <p>Nor with the federal constitution, as impairing the obligation of contracts.</p> <p>The debt funding board provided for by this amendment becomes functus officio, immediately upon determining the disposition of the fund provided for by the amendment.</p> <p>2. -Amendment of the Constitution — Effect—The people of the state have the rightful power to provide by an amendment of the constitution for the liquidation of outstanding warrants of the state, without reference to the form of the debt, or obligation.</p> <p>That the people have heretofore rejected a proposed amendment for refunding the same warrants upon terms much less liberal to the holders thereof is not a matter for judicial consideration.</p>

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

<p>.1. Tax Titles — Void Deed — A tax deed founded on a sale to the county and an assignment of the tax sale certificate by the county clerk, made more than three years after the date of the sale, is void.</p> <p>. So also is a deed rounded on a sale to the county made on the first day of the sale.</p> <p>2. Evidence — Record of Tax Sales — The record of a tax sale is admissible to show the actual date of the sale of particular lands, falsifying a tax deed which recites a different date.</p> <p>3. Quieting Title — Plaintiff’s Title — A decree quieting in plaintiff the title to lands to which he shows no title is error.</p> <p>4. -Plaintiff’s Possession — Prima facie proof of title in fee carries with it constructive possession, where there is no actual adverse" possession, and is sufficient.</p> <p>5. Evidence — Receiver’s Receipt — A paper purporting to be the receipt of the receiver of the United States Land Office, for entry money of lands is not evidence of title, in the absence of evidence of its authenticity and genuine character.</p>

<p>1. Judgments — Void and Voidable — Direct or Collateral Attack— If an inspection of the record proper shows that in giving judgment the court acted without jurisdiction the judgment is void, and maybe collaterally attacked. If the record furnishes no evidence of nullity, or if it recites jurisdictional facts which are untrue, the judgment is voidable, and the attack upon it must be direct, and the evidence to establish its infirmities must come from other source than the judgment roll. A domestic judgment of a court of general jurisdiction cannot be attacked collaterally unless the judgment roll affirmatively shows a want of jurisdiction.</p> <p>2. -Direct Attack — What Is — Direct attack upon a judgment may be made by motion, by answer and cross-complaint, by an equity ble action to vacate it, or enjoin its enforcement, by writ of error, or possibly by bill of review.</p> <p>3. -Evidence — In a direct attack upon a judgment upon the ground that no service of process was had, oral evidence may be received to impeach the record, where no third parties have acquired rights, upon the faith thereof. But the evidence must be clear and convincing. Testimony of a lady of twenty-two or twenty-three years that she was not served with process in a certain cause, fifteen years before that, that she did not remember any such service, nothing having occurred in the meantime to call her attention to the question, was held insufficient to overthrow a decree in such cause upon due return of service recited in the record.</p> <p>4. -Collateral Attach — A suit to partition lands, against those who claim under a mortgage by the administratrix of a former proprietor, under authority of a decree of the county court, one of the heirs of such former proprietor being plaintiff, and claiming that in the proceeding in which the mortgage of the administratrix was authorized, no service of the summons was had upon her, is a collateral attack upon the decree in such proceeding.</p> <p>5. County Court — Character of — In the settlement of estates the county court is a court of record and general jurisdiction. In any collateral attack upon its decrees jurisdiction of both the subject matter and the person is presumed. The absence of jurisdiction must be determined by its own record. The mere absence of any summons and return of service does not suffice, even though in the record, there is no recital of service.</p> <p>6. District Court — Jurisdiction to Reviera Proceedings of the County Court — The district court'has no. jurisdiction to review, in a collateral action, a decree of the county court, and vacate it for mere error or irregularity, even though sufficient to reverse such decree on error brought.</p> <p>7. Evidence — Competency—Where the summons has been lost from the files of a cause which has gone to final decree, a certified copy of the summons will not be received to contradict the recital of service, appearing in such final decree.</p> <p>8. Process — Summons—Misnomer of Defendant in Return — Misnomer of the defendant in- the officer’s return of a summons is immaterial if the defendant was actually served.</p>

<p>Error to Denver District Court. — Hon. Harry C. Riddle, judge.</p>

<p>Appeal from Denver District Court. — 'Hon. Careton M. Beiss, Judge.</p>

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

<p>Brror to Gilpin District Court. — Hon. Charles- McCall, Judge.</p>

<p>Error to El Paso District Court. — -Hon. J. W. ShEafor, Judge.</p>

<p>1. Divorce — -The State a Party — Duty of the Court — In all actions for a divorce tRe state is an interested party, and if “in the course ot the proceeding, or upon the trial, facts are developed which make it inequitable or unjust that a divorce should be granted, it is the duty of the court to refuse the decree.</p> <p>2. -Continuance — It is the policy of the courts to be more liberal in granting continuances in proceedings for divorce than in ordinary actions.</p> <p>The husband’s action for a divorce, after slumbering for more than six months without any step taken, was set down on his motion, on the 19th of the month, to be tried on the 25th of the same month. The wife was, by consent of the husband, residing in Illinois, and the judge of the court then presiding gave her counsel an assurance that if she could not be present at that date a continuance would be granted. This assurance was communicated to the lady. On the day so appointed a continuance was applied for by the defendant, on the affidavit of her attorney showing the above assurance, so given by the presiding judge of the court, that the lady was then unable to be present, that notice of this inability hack reached her counsel only on the preceding day, and that this was the first application for a continuance. The delay applied for was only for a fortnight.</p> <p>Held that though the cause was not tried until the 30th of the month, it appearing (upon a motion for a new trial) that the defendant had notice of the denial of a motion for a continuance only on the evening of the 38th, that she was then attending a sick parent, that she was without means, that she had defeated a former action by the husband, and that the husband was in default in an allowance which he had then agreed to pay her, the denial oi the motion for continuance was error.</p>

<p>Rrror to Denver County Court. — Hon. John R. Dixon, Judge.</p>

<p>Error to Earimer District Court. — Hon. Harry P. Gam-1 bre, Judge.</p>

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

<p>Error to- Denver District Court. — Hon. H. C. -Riddle, Judge. . . -</p>

<p>The only question involved being one of fact, and the judgment below not being at variance with the evidence, judgment affirmed.</p>

<p>1. Pleadings — Complaint—Insufficiency—Manner of Malcing Objection — That the complaint fails to state a cause of action, may under secs. 56, 61 of the code, be urged by demurrer, answer, or an objection to testimony.</p> <p>2. -Construed — The complaint averred that plaintiffs executed to defendants two promissory notes payable in one and two years from date, respectively, for part of the purchase price of a stallion; that defendants issued to plaintiffs a certificate evidencing the interest of each in the stallion, and represented to plaintiffs that they were the owners of the stallion “according to the interests as they appeared in said certificate”; that plaintiffs signed and delivered the notes upon these representations; that defendants disposed of the notes for value, and at the same time issued to certain other persons named certificates that they also were interested in the stallion to amounts' named, and that this was in fraud of plaintiff’s rights, and to their damage in a sum specified. Held, that the representation that plaintiffs were the owners “according to the interests as they appeared, etc.,” was manifestly a true representation; that inasmuch as the total price agreed to be paid for the animal was nowhere stated, or the individual or joint interest which the plaintiffs were to acquire, so that for anything appearing, their interests were, in the aggregate, less than the entire property in the animal, and the subsequent issue of certificates of interest to the others named, no invasion of their right, the complaint showed no cause of action.</p>

<p>Error i'o Rio Grande County Court. — H011. AedEn Bassett, Judge.</p>

<p>1. Statutes — Construction—Statutes in Pari Materia — Th'e statutes of the territory of Colorado establishing the grand jury system and authorizing prosecutions by indictment, that establishing the office of county attorney,-and that establishing the office of district attorney (Rev. Stat. 1868, e. 24), and prescribing their respective duties and authority; that providing for the appointment by the court .of a district attorney pro tern., in certain cases (G. L. 1877, secs. 1897-1899, Rev. Stat. 1908, secs. 2109-2111); the provisions of the constitution creating the office of attorney general, and the statute prescribing his duties (G. L. 1877, sec. 1103 et seq., Rev. Stat. 1908, sec. 6168 et seq.); the act providing for the prosecution of offenders by 'information (Laws 1891, 240, Rev. Stat. 1908, secs. 1957-1968), and the .amendatory act of 1893 (Laws 1893, c. 66); and the act providing that a grand jury shall not be summoned unless specially ordered by the court (Laws 1891, 253, Rev. Stat. sec., 3695), are, to be taken together as in pari materia, and construed, if possible, so as to he consistent and harmonious one with the other, and in their several parts.</p> <p>And the nature.of the several acts, their respective titles, the history of each, and the previous state of the law, are to he considered.</p> <p>2. Attorney General — Power in the Prosecution of Public Offenses — When ■ thereunto required by-the governor under sec, "6168 of the Revised Statutes, the attorney general may subscribe, .present and prosecute an information against a public offender, with the same powers as the district attorney of the proper district.</p>

<p>Error to Denver County Cottri. — iHon. Grant E- Hudson, Judge.</p>

<p>Error to Summit County Court. — Hon. D. W. Farr, Judge.</p>

<p>Error to Chaffee County County.- — -Hon. Joseph Newitt, Judge.</p>

<p>Mrror to Costilla District Court. — Hon. Charles C. Holbrook, Judge.</p>

<p>Brror to Bctrimer District Court. — Hon. Harry P. GambeE, Judge.</p>

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

<p>Error to Boulder District Court. — Hon. James E. Garrigues, Judge.</p>

<p>Brror. to Boulder County Court. — Hon. E. J.- Ingram, Judge.</p>

<p>Bn'ór'i to Denver District Court. — Hon;' 'ÓEORdE ■ W.i AekÉn/Judge. ■</p>

<p>Brror to Weld District Court. — -Hon. Harry P. Gamble, Judge.</p>

<p>1. Landlobd and Tenant — Notice to Quit — It Is not essential that the landlord’s notice to quit should be upon a single piece of paper. Two papers, relating to the same matter, and served at the same time, are necessarily construed as one document.</p> <p>2. --Forfeiture — Breach of Conditions — Waiver—Landlord’s acceptance of rent in ignorance of the tenant’s violation of the conditions of the lease is no waiver of the condition, or the breach of it.</p> <p>Nor is the acceptance of rent which matured before the violation of the condition.</p> <p>3. -Landlord's Consent to a Particular Bub-Lease, does not annul the tenant’s covenant not to sub-let without the landlord’s consent, nor does it warrant a sublease to a different tenant, without such consent.</p> <p>4. -Return of Rent — The landlord, declaring a forfeiture of the lease for the tenant’s violation of its conditions, is not required to return any part of the rent matured and collected. The tenant violating the conditions of the lease loses both the term and the rent.</p> <p>5. Appeals and Whits of Error — Parties Restricted to Positions Taken Beleño — Where, in wrongful detainer by landlord against tenant, the latter concedes, in the court below, due service of notice to quit, he will not be heard to question the sufficiency of the notice upon error.</p>

<p>Error to Denver District Court. — Hon. Geo. W. ArrEn, Judge.</p>

<p>1. Parties — Plaintiffs ex Contractu — Plaintiff's, real estate brokers, contracted in writing to make title to certain lands for a certain price, to be paid over upon tbe delivery of tbe conveyance. Tbe owner approved the contract, tbe deed was delivered, and tbe owner received his price for tbe land. The broker is entitled to recover the residue of the sum named in tbe contract.</p> <p>2. Interest — From What Day Computed — Where, an indebtedness being shown, the day of its maturity is not made clearly to appear, interest may be computed from the institution of tbe action.</p>

<p>Error to Garfield District Court. — Hon. John T. Shumate, Judge.</p>

<p>Error to Ouray District Court. — Hon. Sprigg Shackle ford Judge.</p>

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

<p>1. Evidence — Discrediting Witness — Contradictory Statements— A mere expression of the opinion or feeling of a witness is admissible to discredit him,' if it tends to manifest that in his testimony he was guilty of a fabrication. In an action against a street railway company for an injury to a child, attributed to the negligence of the motorman in the operation of a' train; one who was an eye-witness gave testimony strongly tending to exonerate the motorman. On cross-examination he testified that he had never had any conversation with the attorney or claim-agent of defendant as to what testimony he would give; that when put upon the stand no one connected with the defense had any idea of what he would say. He denied that when he picked up the child he had exclaimed that “the motorman ought to be lynched.” Held, proper to admit testimony that the witness did make the exclamation imputed to him, expressly limiting it to its effect upon the credibility of the witness, and not as bearing upon or having any relevancy to the responsibility of the defendant.</p> <p>2. -Laying Foundation. — When it is sought to discredit a witness by evidence of" statements which conflict with his testimony, the foundation must be laid by interrogating him as to whether he made the supposed statement; and hi.s attention must be directed to the particular time and place thereof. But it is sufficient if the rule is reasonably complied with. If it appears that by the course of the interrogation the witness could not have been misled, this suffices.</p>

<p>Error to Phillips District Court. — Hon. H. P. Burke, Judge.</p>

<p>Brror to Ba/rimer District Court, — Hon-. Harry P. GambeE, Judge.</p>

— Plaintiff in error brought suit against defendant in error the sole purpose of which was to enjoin the latter from selling, under an execution on a judgment obtained against her husband, real estate which she claims belonged .to her. On filing the complaint a temporary injunction was issued. After the issues were made up, the defendants filed a motion to dissolve the temporary writ.

Rrror to L,a Plata District Court. — Hon. Charles A. Fike, Judge. Defendant in error commenced suit against the plaintiff in error in his official capacity, the sole purpose of which was to enjoin him from levying an execution on property of the defendant issued on a judgment rendered by the county court of Hinsdale1 county in an- action wherein the treasurer of that county was plaintiff, and the plaintiff in the present action the defendant.

<p>1. Judgment — Obtained by Fraud — Belief in Equity — Burden of Proof — Where a judgment at law is assailed in equity for fraud and collusion in the procurement thereof, the plaintiff in equity is not required to assume the burden of disproving the justice of the plaintiff’s demand in tbe action at law.</p> <p>2. Pkincipal and Agent — Duties and Disabilities of Agent — The president and general manager of tbe corporation asserting a demand against it must proceed openly. A judgment obtained by him against the corporation, by collusion with the secretary, no other officer or director of the company being informed of the institution of the action, was vacated on bill brought by the corporation.</p>

<p>1. Tax Titles — Void Deed — A treasurer’s deer reciting a sale to tlie county on the day on which the sale commenced, or which shows that non-contiguous lands were sold en masse, for a gross sum, is void.</p> <p>2. Limitations — Void Deed — -A deed void upon- its face, does not set in motion the five-year limitation (Rev. Stat. sec. 5733) .</p> <p>3. -Color of Title — Tax Deed Not Recorded — A tax deed not-recorded is not color of title to vacant lands, under the statute (Rev. Stat. sec. 4090).</p>

Brror to Conejos District Cou,rt. — Hon. ChareES C. Hoebrook, Judge. Cones, defendant in. error, brought suit against plaintiff in error, McCracken, and others, to quiet title to certain real estate. McCracken was personally served with summons in the action, but failed to enter- an appearance.

<p>Error to Denver County Court. — Hon. John R. Dixon, Judge.</p>

<p>Brror to Boulder District Court. — Hon. Harry P. Gambus, Judge.</p>

<p>1. Criminal Law — Conviction Upon Conflicting Evidence, will not be disturbed, where there is sufficient competent evidence to support it.</p> <p>2. Evidence — 'Voluntary Statements of the Accused, made without threat, compulsion, coercion, inducement, or anything akin thereto, are .admissible against himj though at the time of such statement he was under arrest, charged with the offense.</p>

<p>1. Statutes — Construction—In ascertaining the meaning of the act establishing the court of appeals of 1911, the act of 1891, establishing the former court of the same title (Laws 1891, 1Í8) may be referred to. Comparing sec. 1 of that act with sec. '6 of ’the ;aetof 1911, it is manifest that the omission in the latter act of all provision for review by the supreme court on the basis of the-value of the property involved, of the' judgment of the court of appeals in actions of replevin was deliberate, and advisedly done.</p> <p>2. -Wisdom or Policy of the Statute — Where the statute is plain the courts have nothing to do with its wisdom or policy.</p> <p>3. Court op Appeals — Review of Judgment — 'A judgment of the court of appeals, in an action of replevin, awarding possession and nominal damages, is final, even though the property in controversy exceeds in value the sum of five thousand dollars.</p>

<p>1. Judgment — Recitations of Record — Where a'judgment record recites, generally, service of summons upon the defendant, not showing the manner of the service, hut the summons shows a mode of service which is had, the recitals of the record will be rejected and the judgment declared void.</p> <p>2. Judgment — Presumptions—One relying upon a judgment as the foundation of the title to lands, produces a judgment roll. It contains a summons which hears no .authentic evidence of service. No presumption will be indulged that there was another summons.</p> <p>3. Sheriff — Serving Summons in Another Oounty — The sheriff loses his official character when hé passes out of his own'county. In serving a summons in another county he acts merely as an individual, and the service must be shown by his affidavit. His mere return, unsworn, is no evidence of the service, and judgment rendered upon such return of service, not otherwise shown, is void.</p>

<p>1. Limitations — Neio Promise — Aclvnowledgment—A. promissory note was secured by a trust deed- of lands. The trustee having advertised the lands for sale, the maker of the note caused to be published at the foot of the trustee’s advertisement a notice to the effect that he had- had no interest in the lands since a date named. Held, a disclaimer rather than an acknowledgement of liability.</p> <p>2...- — —Payment—Operates to. avert the ’bar of statute of limitations only when it is a conscious and voluntary act, explainable only •as a recognition of existing liability. A promissory note executed by defendant was secured by deed of trust of land. After the statute of limitations had completed its course the lands were sold by the trustee, and the amount of the sale endorsed as a credit upon the note. An ■attorney attended the sale, by direction of the defendant, “to protect his interest," and made some suggestion as to the manner of the endorsement. The attorney had no authority from defendant to waive the statute. Held, that the circumstances detailed were not to be accepted as an acknowledgment of liability on the part of defendant.</p> <p>3. Attorney — Authority—The maker of a promissory note barred by the statute of limitations directs an attorney to attend a sale of land under a trust deed given to secure the note, and “protect his interest.” He has no authority to waive the statute of limitations for his client.</p>

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

<p>Brror to Boulder District Court. — Hon. James E. GarriguES, Judge.</p>

<p>Error to- Denver District Court. — Hon. GreerEy W. Whiteord, Judge.</p>

<p>Error to Yuma District Court. — Hon. H. P. Burke, . Judge.</p>

<p>Error to Denver District Court. — PI011. ■ PIubert L,. Shattucic, Judge.</p>

<p>Error to Clear Creek County Court. — Hon. Warter S. Hobbs, Judge.</p>

<p>1. Registration oe Titles — Application—What Land May Be Included — Several tracts situated in the same county, claimed by the same party, and under the .same chain of title, may be included in one application for the reigstration of the title under the statute (Rev. Stat. c. 28), even though not contiguous.</p> <p>Lands held only by tax deed, the title having been quieted in an action instituted within one year of the execution of the deed, may be included.</p> <p>Nothing in the statute (Rev. Stat. sec. 5733) requires one holding under a tax deed to delay his action to confirm or quiet his title. He may institute his action at any time aítér receiving his deed. ,</p> <p>2. Limitations — Land Sold for Taxes — Five Year Statutes — Notwithstanding the provisions of sec. 5733 of the Revised Statutes, one claiming lands under a treasurer’s deed may sue to quiet his title, at any time after receiving his deed.</p> <p>3. Judgment — Who Concluded — Bill to Quiet Title to Lands — One holding title as trustee merely is named as defendant in the action, in his individual capacity. The decree affects only his personal right, and not his estate as trustee.</p>

<p>Error to Montezuma District Court. — Hon. Charles A. Pike, Judge.</p>

<p>1. Statutes — Construction—In construing a statute effect is to be given to every clause, if if be possible.</p> <p>2. Municipal Coepoeations — Ordinance Prohibiting What Is Prohibited by Statute, involves no conflict.</p> <p>S. ■ Locai Option Act — Effect as to Existing Municipal Ordinances —Secs. 4101 and 4111 of the Revised Statutes suspend.all ordinances of every municipality either permitting, forbidding, or regulating the sale of intoxicating liquors, within territory where the statute has become of force.</p>

<p>Error to Rio Grande District Court. — Hon. Ch arres. C. Hoebrook, Judge.</p>

<p>Error to Saguache County Court. — Bon. M. N-. Jordan, Judge.,</p>

<p>Error to Adcmns County Court. — Hon. H. J. Class, Judge.</p>

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

<p>Error to Archuleta District Court. — Hon. ChareES A. Pike, Judge.</p>

<p>Error to Denver District Court. — Plion. 'Harry C. Riddle, Judge.</p>

<p>1. Electicws — Statutes regulating the exercise of the eletcive . franchise, receive such construction as will afford to the elector the greater liberty in casting his ballot.</p> <p>2. -Nominations hy Petition — One who has accepted the nomination of a political party may be nominated by petition of independent voters, assuming a different party designation.</p>

<p>Elections — Contesting Nomination — One proposing to contest a nomination made by petition) must pursue the .statute (Laws 1910, O. -4, sec. 44). Petitioners’ certificate of nomination was rejected by the secretary of state on the 6th of September. No petition of contest was presented until the 17th of October, and no verified copy of the petition of contest was served on the respondent at any time. Held that the petitioners’ rights were foreclosed by their laches.</p>

<p>Error to Arapahoe District "Court. — Hon. Charles McCall, Judge.</p>

John I. Mullins, Judge. Appellee, as plaintiff, brought suit against appellant to recover damages in the sum of $1,722.00, claimed to have been sustained on a shipment of cattle from Holbrook, Arizona, to the city of Denver, as the result of the alleged negligence of the defendant company in transporting the cattle between these points, which plaintiffs haft delivered to it for that purpose.

<p>Appeal from Denver District Court. — ITon. John I. Mullins, Judge.</p>

<p>Error to Ouray District Court. — Hon. Sprigg Shackle-ford, Judge.</p>

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

<p>1. Pleading — Quantum Meruit — One who serves another under promise of good wages may declare on the quantum meruit.</p> <p>2. --What Must Be Specially Pleaded — Action for personal services. If the defendant would show that plaintiff, being a brother of defendant’s wife was received into his home, while siill of tender years, under an agreement that he should be a member of the family and treated as such, and that he was so treated, and cared for and supported during the time of the supposed service, he must plead this defense specially.</p>

<p>1. Practice in Supreme Court — Recitals of Record as to Ground of Action Below — Conviction of crime. Motion for a new trial grounded on the recent discovery that a witness named would give evidence tending to dispel the accusaation. Affidavits were filed by the district attorney impeaching the character of this witness. The court below declined to strike off these affidavits. The recital of the record of that court that the motion for a new trial was overruled “for the reason that the evidence set forth in the affidavits is cumulative,” was held sufficient to controvert the suggestion that the court below was influenced by the counter affidavits.</p> <p>2. New Trial — Newly Discovered Evidence, merely cumulative, to former evidence is not, according to the general rule, sufficient to support a motion for a new trial.</p> <p>3. -Diligence Required — Conviction in November of the larceny of a steer. At a trial in the preceding April the jury disagreed. Defendant’s defense was that the steer bore her brand, and not that of the prosecutor. She moved for a new trial upon affidavit that she “now recalls” meeting upon the road when driving the animal in question, a man whom she did not recognize; that she had recently discovered that this person was one Beals. Beals’ affidavit as to the fact of this meeting, and that the animal bore the brand of plaintiff in error was also filed. It did not appear that the evidence for the people at the second trial differed from that of the first. There was no showing of any effort made before the conviction to discover this witness, and plaintiff in error gave no reason for her failure to recall at an earlier date, her meeting with him. The motion was held properly denied.</p>

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

<p>1. Practice in Supreme Court — Harmless Error — There being no evidence to support the defendant's counter-claim remarks of the presiding judge relating thereto, during the trial, will be regarded as harmless, even, if improper.</p> <p>• 2. -Transcript — Error assigned upon the refusal of an instruction can.not be considered unless both the instructions given, and that refused are presented in the transcript.</p>

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

<p>Brror to Grand District Court. — Hon. Charles McCall, Judge/’'</p>

<p>Constitotionau Law — Article XX — The treasurer of the City and County of Denver, chosen under the charter of 1904, though performing the duties of county treasurer, is not entitled to a salary in the latter capacity.</p>

<p>Error to Montrose County Court. — Hon. H. W. Hanes, Judge.</p>

<p>1. Corporate Stock — How Talcen in Execution — Corporate stock is the right oí the stockholder to share in the corporate assets. A levy thereon is effected by delivering a copy of the writ and a notice of the levy to an officer of the corporation designated by law.</p> <p>2. --Stock Held in Trust for Execution Defendant, may be sold on execution for the liabilities of the’ beneficiary; but a certificate by the treasurer of the corporation that stock standing upon the books in the name of another is in fact held in trust for the execution defendant, does not establish the trust, nor in any way aid in the collection of the creditor’s, demand.</p> <p>Such trust can only be established by the judgment of a court of competent jurisdiction, in an action to which the record holder of the stock is a party.</p> <p>3. -Levy — Refusal by Corporate Officer to Certify Members' Holdings — -The refusal of an officer of a corporation to certify to the shares held by the execution defendant in’no Way affects the lien acquired by a valid levy thereon.</p> <p>4. ■ -Conspiracy of Offfficers of Corporation to Defeat Levy on Shareholder’s Stock — A. combination among the officers of a corporation to conceal the holdings of a member, by causing the same to be registered in the name of another, occasions no injury to a creditor of such stockholder who has no lien on the stock, and affords him no action against the officers so combining.</p> <p>5. Conspibacy — Civil Action For — The gist of a civil action for a conspiracy is not the unlawful combination, but the damages occasioned thereby. There can be no actiipnable conspiracy not resulting in damage to the complaining party. Nor can there be a conspiracy to do what is in law impossible, e. g., to prevent an officer from taking into his possession corporate stock of the defendant in the process.</p>

<p>Error to■ Weld District Court. — Hon. Néil F. Graham, Judge. '</p>

<p>Error to Teller District Court. — Hon. James Owen, Judge.</p>

<p>Appeal from Denver District Cotirt. — Hon. Harry C. RiddeE, Judge.</p>

<p>Error to- Denver District Court. — Pión. GreEEEY Wi Whiteord, Judge.</p>

<p>1. Constitutional Law — Article XX — By section 2 of article XX, power is conferred upon the municipality of the City and County of Denver, not to create any county office, but merely to designate the officers, holding offices which it has power to create, who shall respectively perform the duties and exercise the powers imposed upon county officers, by the constitution and general laws.</p> <p>2. Justice oe the Peace — A County Officer — Under the provisions of the constitution (sec. VI. — >12 art. XIV) a justice of the peace is a county officer.</p> <p>3. Denver — Charter—Amendment of May 17, 1910 — The amendment of the charter of Denver, adopted May 17, 1910, had not the effect to abolish the office of justice of the peace, as an office under the charter. Sufficient still remained to authorize periodical elections thereafter, under the charter, to fill that office, and one claiming the office by virtue of an election thereto, at an election for state and county officers was held a usurper and ousted.</p>

<p>Judgment affirmed on the authority of Thrush v: The People, No. 7879 ante 544.</p>

<p>Judgment affirmed on the authority oí Thrush v. The People eat rel. No. 7879 ante 544.</p>

<p>This cause involved, the right of plaintiff to be placed upon, the ticket at an election -to be held on the 5th day of November, A. D. 1912. The transcript was filed in this court on the 31st day of the preceding October. The rights of parties not before the court would clearly be affected by the judgment. The cause involved important and difficult questions, such as ought not to be determined except upon full consideration. But there was no time for such'consideration. Therefore, there being no allegation of fraud, moral turpitude, or willful wrong-doing, the court declined to entertain it, following Foret v. Beclcwith, 28 Colo. 95.</p>

<p>Injunction — Ew Parte — Summary Judgment on Bond — The provisions of the code (Rev. Code sec. 164) that one allowed an injunction ex parte shall give bond to the defendant, with sureties, conditioned for the payment of a sum, fixed by the court, in case it shall be determined that no emergency existed, etc., or that plaintiff created or connived at such emergency, for the provision requiring for the entry of summary judgment, pursuant to -the terms of the bond, in case it shall be determined that no emergency existed, etc., is not im violation of any provision of the federal or state constitution.</p>

<p>1. Assignment — Of Executory Contract — Effect—Contract by which, among other things, M. agrees to deliver to K. certain ewes and lambs, to be selected by K. out of certain designated flocks. K. endorses it “Pay to the order of H.” Inasmuch as the contract is not negotiable, the endorsement fixes no liability upon the assignor. The assignor merely engages that the contract is genuine; not that it will be performed by the promisor.</p> <p>2. Evidence — Parol Admissible — An executory agreement to deliver chattels is endorsed by the promisee with the words “Pay to the order of,” a party named. Parol evidence as to what was in fact agreed at the time of this assignment is admissible.</p> <p>3. Appeals — Harmless Error — Where, in a cause tried by the court, the plaintiff shows no right, failure to make special findings on his request, is harmless, even if erroneous.</p> <p>4. Costs — Unreasonably and Unnecessarily Incurred, the court may refuse to tax; but the mere affidavit of the objecting party that witnesses subpoenaed but not called knew nothing of the case, is not sufficient to warrant the imputation of bad faith against the party taking out the subpoena.</p> <p>Especially is this so- where the subpoena was issued by order of the court, upon sworn application.</p> <p>5. —■—Fees of Witnesses Regularly Subpoenaed but Not Called, may be taxed against the defeated party unless he -snows that the subpoena was issued in bad faith, for the purpose of oppression. .</p> <p>6. Bill op Exceptions — When Necessary — ¡Defendant subpoenaed witnesses from a distant county, pursuant to an order of. the district court, obtained on sworn application. Defendant prevailed. The clerk taxed the ‘fees of these witnesses against plaintiff, though they were not called. On affidavit that the subpoena was obtained ex parte, in violation of a stipulation, plaintiff moved the court to retax the costs and reject the fees of these witnesses. The motion was denied and this was v assigned for error. Neither the order for the subpoena, -nor the affidivit upon which it was obtained,- were brought up. The court declined to> assume that the order for the subpoena was obtained without notice.</p>

<p>Specific Pebfobmance — Contract Involving the Rights of One Not a Party Thereto■ — A contract contemplating tlie exchange of lands for a stock of merchandise of which a third person is rightfully in possession, and so far as appears is entitled to continue in such possession, cannot he specifically enforced.</p>

<p>The State — Private Aeiton By — Intervention—Intervenor’s Bight to a Writ of Error — The state cannot he made defendant in an action, ■without its consent; hut where the state voluntarily sues in its own courts, a private person claiming to he entitled to the fund which is the subject of the action, may intervene therein, and if defeated may prosecute a writ of error to review the judgment.</p>

<p>Error to• Sedgwick County Court. — Hon. R. J. DobBee, Judge.</p>

<p>Error to- Logan District Court. — Hon. H. P. Burke, Judge.</p>

<p>1. Limitations — Cloud Upon Title — Sections 4072, 4073, 5733, Revised Statutes bave no application to a bill to remove a cloud upon title.</p> <p>2. Tax Titles — Void Deed — Irregularity - in Proceeding — Wlbere upon bill to remove a cloud upon, title defendant relies upon a tax deed not aided by any statute of limitations plaintiff may assail it for invalidity upon its face, or by evidence de hors tbe record of fatal defects in tbe proceedings, antedating tbe sale.</p>

<p>1. Criminal ^Information — Affidavit—A criminal information contained tw.o counts (1) for larceny, (2) for receiving stolen goods. It was supported by an affidavit that to the knowledge of the affiant the goods were stolen. Defendant proceeded to trial without objection upon this score, and was convicted under the second count. Held, that regarding the affidavit as insufficient as to. the second count, it was at most a mere irregularity, and was waived by proceeding to trial without objection.</p> <p>2. -Information — For Receiving Stolen Goods — According to the weight of authority an information for receiving stolen goods need' not give the name of the person from whom they were received. Sault v. People, 3 Colo. App. 502, distinguished.</p> <p>3. Statute — Waiving Statutory Right — One against whom a criminal information is presented may waive the absence of an affidavit thereto.</p> <p>4-, -Irregularities — Substantial Rights of Accused — The failure of an information for receiving stolen goods to state the name of the person from whom the goods were received does not affect the substantial rights of the accused, and under the statute (Rev. Stat. sec. 1986), no exception to the omission, having been taken before trial, it is without avail after conviction.</p>

<p>Error to Denver District Court. — Hon. Frank T. Johnson, Judge.</p>