Volume 7 — Colorado Reports

<p> Error to District Court of Saguache County. </p> <p>The facts are stated in the opinion..</p>

<p> Error to County Court of Larimer County. </p> <p>The facts are stated in the opinion.</p>

<p>The decease of the husband after a decree of divorce is granted, and before proceedings in error thereon are instituted, does not operate to prevent a review of the decree when property rights are involved.</p>

<p>1. Under the statute (General Laws 1877, section 2565), no one hut a householder is authorized to take up an estray animal, and he only when it is found in the vicinity of his residence.</p> <p>2. Estrays cannot be lawfully used by the taker-up, unless to use them be necessary to preserve them from injury, and for the benefit of the rightful owner.</p> <p>8. The using of estrays, save as to the exception mentioned, is tortious, and the taker-up thereby forfeits his claim for compensation.</p>

<p> Error to District Court of Fremont County. </p> <p>The facts are stated in the opinion.</p>

<p>1. When an attorney takes a case upon a contingent fee, and on his own account employs an attorney to assist him in the case, upon promise of a “ good fee ” for the services he shall render, it is error, upon the trial of an action for such service, to admit testimony showing the amount realized by the attorney whose compensation rested on the contingency.</p> <p>2. The value of an attorney’s services in a given case is to some extent governed by the amount in controversy, and the consequent responsibility resting on him, and it is not error to admit evidence of the value of the property in controversy.</p> <p>3. It is error to allow an answer to a hypothetical question which does not conform, to the facts in evidence.</p> <p>4. The statements of a person not a party to the record must be rejected as hearsay. Secondary evidence of the contents of a letter should not be admitted, unless the preliminary proof of loss shows a bona fide and unsuccessful search in the place where the lost instrument was deposited and last seen, or where it was most likely to be found.</p>

<p>1. A rule applicable to every system of pleading is that a demurrer runs through the whole series of pleadings, and will be sustained to the first defective pleading. Objections are not waived to an answer by filing a demurrer to a replication.</p> <p>2. Where service by publication is relied upon, it must be in a case and under circumstances wherein that mode of acquiring jurisdiction is authorized by the statute, and the material requirements of the statute must be complied with.</p> <p>u* Where service is obtained by publication of the summons, the defendant has forty days to answer the complaint after the service is complete.</p> <p>4. In an action of attachment under the statute, if the district court has complied with the terms of the statute in respect to obtaining jurisdiction of the person and the subject-matter and in pronouncing its judgment, no authority exists for disregarding or refusing to give effect to such judgment in a collateral proceeding.</p> <p>5. The levy of a writ of attachment issuing out of a district court being followed by judgment, and execution having issued within a reasonable time, held, that the plaintiff’s lien upon the attached property was preserved as against a special execution issuing out of a county court on a junior judgment in favor of another xjarty; also held, that an objection that a general, instead of a special, execution was issued against the attached property would be unavailing.</p>

<p>1. Under the code (1877, secs. 431, 443), a judge who, before he went upon the bench, was of counsel in a case, is disqualified from presiding at the trial unless all parties consent that he may. And in such case it is his imperative duty (if county judge), of his own motion or on suggestion, to certify the case to the district court, without requiring petition for change of venue under the statute.</p> <p>2. In the absence of any statutory provision, the general rule is that costs abide the event of the suit, and in case of a change of venue from the county court, on the ground of the disqualification of the judge, there is no authority to make the payment of costs a condition precedent to such change of venue.</p>

<p>1. In the absence of special contract, express companies are subject to the same liability as other common carriers. At common law they are regarded as absolute insurers of goods intrusted to them for transportation, when properly packed, except for loss by act of God or the public enemy.</p> <p>2. But it is held that, upon grounds of public policy, they cannot, even by contract, shield themselves from responsibility from loss or injury, nor limit the amount to less than the value of the loss, by the negligence of themselves, their agents, employees or servants.</p> <p>3. It being the custom to require valuable packages to be sealed before receiving for shipment, it is negligence to receive an unsealed package, or to ship it unsealed. Nor can the company, so in default, be excused by the fact that the loss may have occurred on one of the subsequent connecting lines.</p> <p>4. The terms of the contract limiting liability, being for the benefit of the company, must be construed most strongly against it. A contract undertaking to limit the liability to that of a mere forwarder does not relieve the company from the exercise of ordinary care while the goods are in its possession.</p> <p>5. If conflicting and irreconcilable propositions of law are contained in the charge, and it appears that the jury may have been misled thereby, a new trial should be granted; but if, upon a careful consideration of the entire charge, though there be conflict between some portions thereof, it appears that the complaining party could not have been prejudiced by it, the supreme court will not disturb the verdict on account of imperfections therein.</p>

<p>1. Tbe •well-settled rule of law relating to all irregularities in the proceedings of arbitrators, which are not jurisdictional, is that an objection, to be availing, must be seasonably made. If a party, knowing of an irregularity, in order to avail himself of all chances of an award in his favor, remains silent, and permits the investigation to proceed, and money to be expended, etc., he will not afterwards be heard to question the validity of an unfavorable award, on the ground of such irregularity.</p> <p>3. The failure of one of a board of arbitrators to attend a meeting, when no final action was taken, was a mere irregularity, and not jurisdictional, it appearing that all the arbitrators were present at the last meeting, and all, with the whole evidence' before them, consulted and deliberated together concerning their award.</p>

Appeal from County Court of Gunnison County. Bricker, the appellee, had judgment in the county court for $164.23. The facts are stated in the opinion.

Replevin, by Daniel E. Parks, assignee of Freudenfield and Jelenko, against Tucker, sheriff of Lake county. The instruction given upon the question of damages, and held to be erroneous, was as follows: Fifth instruction.

<p>1. A statute which assumes to limit or direct the compensation to be paid for private property, when taken for public or private use, is to that extent unconstitutional.</p> <p>2. When, however, part only of an act is unconstitutional, it does not necessarily follow that the whole statute must fall, and the same is true of the different portions of the same section. Whether the valid portions shall be enforced depends upon the design of the entire law, and their connection with the void provisions. The act should be sustained, if the unconstitutional portions can be stricken out and the law still be such as to accomplish the purpose of the legislature.'</p> <p>8. By the terms of the constitution the compensation for taking or damaging private property, against the owner’s consent, must be ascertained by a jury or board of commissioners. This requirement cannot be dispensed with by legislative enactment. And under the statute the ordinary civil action cannot be resorted to, but the object can only be reached by special proceedings under the act on the subject of eminent domain.</p>

<p> Appeal from County Court of Elbert Comity. </p> <p>The facts are stated in the opinion.</p>

<p> Appeal from District Court of El Paso County. </p> <p>The facts are stated in the opinion.</p>

<p>Under the code (section 141, Code of 1883) suit may be brought upon an injunction bond in the first instance against the principal and sureties, and the damages assessed and awarded in such action.</p>

<p> Appeal from District Court of Pueblo County. </p>

<p>A strict compliance with forms is not essential in the entry of judgments; yet to constitute a final judgment, the record must not only indicate that an adjudication took place, but the entry must have been intended as an entry of judgment.</p>

<p> Appeal from County Court of Pueblo County. </p> <p>The facts are stated in the opinion.</p>

<p>1. It is a familiar doctrine of the law of contracts, that, if one party is prevented from fully performing his contract by the fault of the other party, the latter cannot be allowed to take advantage of his own wrong to exempt himself from liability under the contract.</p> <p>S. Objection on the ground of variance between the complaint and the proof comes too late when made for the.first time in this court.</p>

The grounds of the motion to quash the service in the court below were: “First. For the reason, that the affidavit upon which said order was made is not nor was not sufficient to authorize the clerk to make said order of publication. “ Second. That said order is not in accordance with sections 41 and 42 of the Code of Civil Procedure of the state of Colorado. “ Third.

<p>Where a complaint alleges that the obstruction on the track, which caused the injury complained of, was on the track by negligence of the company, and that deceased was, at the time, in the discharge of his duty, exercising due care and skill, a demurrer will not lie.</p>

<p> Error to County Court of Larimer County. </p> <p>. Tbb facts are stated in the opinion.</p>

<p> Appeal from District Court of Arapahoe County. </p> <p>The facts are stated in the opinion.</p>

<p>i Error to County Court of Lake County.</p> <p>The facts are stated in the opinion.</p>

<p> Error to District Court of Clear Creek County. </p>

<p> Appeal from County Court of Jefferson County. </p> <p>The facts are stated, in the opinion.</p>

<p>Where an amount is acknowledged in the pleadings to be due plaintiff, it is error to find a verdict or render a judgment for a less amount than that admitted by the pleadings.</p>

<p>1. It is not error to permit an answer to be filed after the statutory period for answering has expired — no default having been entered. Quwre, whether the code renders it necessary in such case to obtain leave of the court to file answer.</p> <p>2. In purely equitable cases, the trial must be to the court, unless both parties consent to a trial by a jury. Neither the chapter on references, nor any other provision of the code, operates to deprive the court of the right, in such cases, to direct, upon its own motion, the taking and reporting of the evidence by a referee. The trial may be upon proofs thus taken, or upon testimony given in open court.</p> <p>3. The pronouncing of judgment is a judicial act; the entry of record thereof is a ministerial duty. The judgment is complete when properly declared, though the mechanical act of recording the same has not been performed. It is not essential that this be dono in term time.</p> <p>4. Where a cause is tried to the court upon proofs taken by a referee or master, it is the duty of the supreme court to sift and weigh all the evidence, with a view to a just determination, uninfluenced by the proposition that the court below had superior facilities to judge of the credibility of witnesses, and the judgment will be reversed if not supported by the weight of evidence.</p> <p>5. If the construction of a ditch be prosecuted with reasonable diligence, the right to water therethrough relates back to the commencement thereof.</p> <p>6. A failure to use water is competent evidence of an abandonment of the right thereto; and if continued for an unreasonable period, it creates a presumption of an intention to abandon; but this presumption is not conclusive and may be overcome by other satisfactory proofs.</p> <p>7. A change of the point of diversion on the same stream does not. affect the priority acquired by the original appropriation, provided; the quantity of water diverted remains the same, and no intervening appropriator-is injured.</p> <p>8. To acquire a right to water from the date of diversion one must, within a reasonable time, employ the same in the business for which it was taken.</p>

'Error to District Court of Custer County. This was a petition for an alternative writ of mandamus, filed in the district court of Custer county February 19, 1883, and the writ was issued in accordance with the prayer of the petition, commanding “that immediately after the receipt of this writ, or a copy thereof, you, the said Max E. Alexander, do open and keep open your said office as and of county clerk aforesaid, at said Eosita, in Custer county and state of Colorado, for…

<p>1. The surviving partner of an insolvent firm may make an equitable and just assignment of the partnership effects for the equal benefit of all the firm creditors; but, in his position as trustee, he is not permitted to make an assignment and give preference therein to certain creditors.</p> <p>S. Under the practice in this state an equitable defense may be made in a legal action; and, therefore, the defense that such an assignment is fraudulent and void as against an unpreferred creditor may be interposed in a legal forum.</p> <p>3. Although such defense be not averred in the pleadings, yet if plaintiff establishes the same in making out his case,^ the objection that it is not pleaded in the answer will be considered as waived, and defendant may have the benefit thereof.</p>

<p>1. A condition of an accord agreement, like that of any other contract, may be waived by the parties thereto.</p> <p>3. Where there is ample consideration for an agreement on both sides, and the party who does not sign it acts under it without objection, the agreement, when acted on, may become binding upon both parties, and the writing serve as evidence of the terms of the contract between them.</p>

<p> Appeal from District Court of Park County. </p> <p>The facts are sufficiently stated in the opinion.</p>

<p>1. A judgment will not be reversed for errors which could not have prejudiced the appellant.</p> <p>2. Where, by contract, one is employed by another to do work by the day or month, and nothing is said as to the time of payment for the services to be rendered, his wages are due and may be demanded at the close of each day or month, as the case may be. Such services are comprehended within the meaning of the statute, and after demand for the amount due the laborer may maintain attachment.</p>

<p>1. If a judgment entered in a cause does not put an end to the action, but leaves something further to be done before the rights of the parties are determined, it is interlocutory and not final. To be final it must end the particular suit in which it is entered.</p> <p>2. Where, on error to a county court, the record shows that testimony was produced on the trial in support of the complaint, but has not been preserved, and the finding and judgment having been for the plaintiff, the presumption obtains that the allegations of fact on part of the plaintiff were duly proven.</p> <p>8 The preponderance of American decisions tends to the conclusion that a purchase of assets by the executor or administrator, or his taking and accounting for the same at their appraised value, may be advantageous to the estate, and such advantage is the main thing to be considered.</p> <p>4 When it becomes necessary to save the estate from loss, it is right, arid even obligatory, for the executor or administrator to purchase or take possession of land at the foreclosure of a mortgage belonging to the estate, and to hold the title for the benefit of the estate.</p>

<p> Appeal from County Court of Lake County </p>

<p>1. The unsworn declarations of parties touching their qualifications as voters, after the election, and who were not present at the trial to contradict or explain such declai’ations, held to have been properly excluded as mere hearsay.</p> <p>2. It is within the discretion of the court to refuse an attachment for a witness, who, after being subpoenaed, refuses to attend and testify; and the refusal of the court to issue an attachment will not warrant this court in reversing the finding, in the absence from the record of what it was expected to prove by such witness.</p> <p>3. The act of 1876, requiring a two-thirds vote in favor of the removal of county seats, has no application to the county of Grand.</p>

<p> Appeal from District Court of Lake County. </p> <p>Motion to dismiss appeal.</p>

<p>In condemnation proceedings under the statute, in the county courts, such courts are without jurisdiction where the amount of the award is in excess of $2,000.</p>

<p>A recorder is not compellable, by mandamus, to allow abstract makers to use his office and the comity records for the purpose of abstracting the entire records of the land titles of the county for sale.</p>

<p>The judgment of a court of general jurisdiction cannot be attacked except in a direct proceeding.</p>

<p>Where the parties to be affected adversely by the relief sought, on error to this court, are not before the court, this court will not review the rulings and judgment of the court below.</p>

<p>1. “ On. or before March 12, 1883, I promise to pay to the order of A. two hundred dollars, at the City National Bank, with interest at ten per cent, per annum, value received. This note becomes due and payable when (if before March 13, 1883) A., B. & Co. shall dispose of a part or all their interest in the New York Hotel, or when the interest of B. may be sold or disposed of,” held, to be a promissory note and not affected by the contingency appended.</p> <p>3. When a party indorses a note at the time it is made, and before delivery to the payee, and with a clear understanding that the note would not be accepted unless so indorsed, the party so indorsing such note will be considered as a joint maker, and may not set up want of consideration moving to him.</p> <p>8. This court will not review questions not properly raised by specific assignment of error.</p>

<p>1. The statute of frauds has changed the rule of evidence, not the rule of pleading. A plea which set forth a contract for the conveyance of real estate is good on demurrer, though it does not aver that the contract was in writing — it not appearing in the plea that it was not in writing.</p> <p>2. Under the old practice, while the parts of each plea could not be repugnant to each other, still separate special pleas might be inconsistent, yet not render the pleadings obnoxious to demurrer.</p> <p>3. The failure to make the accord a full satisfaction, being the fault of plaintiff, defendant was not, in this case, precluded from the benefit of this defense.</p> <p>4. A defendant does not waive his objection to the ruling on demurrer to his plea of accord and satisfaction by going to trial on the plea of nul tiel record.</p>

<p> jError to County Court of Gunnison County. </p> <p>The facts are stated in the opinion.</p>

<p> Error to County Court of Summit County. </p>

<p> Error to District Court of Jefferson County. </p> <p>The case is stated in the opinion.</p>

<p> Error to County Court of Lake County. </p>

<p> Error to District Court of Clear Creek County. </p> <p>The case is stated in the opinion.</p>

<p>Where a banking corporation, under the statute, fails within the period of one year from its organization to pay up its entire capital stock in cash, its charter is liable to forfeiture.</p>

<p>Ineoemation in the nature of a quo warranto. The facts are stated in the opinion.</p>

<p>1. For an attorney to stop a judge of a court on the street, and use abusive language to him concerning any judicial action in a case pending before such judge, is such malconduct in office as will warrant the striking of his name from the roll of attorneys.</p> <p>3. In such case it is not necessary that the indignity or insult to the judge should occur in open court, nor that it constitutes a statutory contempt of court, in order to confer on the supreme court jurisdiction to disbar therefor.</p>

<p>1. Proceedings for contempt may be termed a' police regulation or power for the protection of the court from present direct interference and annoyance in a trial or proceeding taking place before it, while proceedings for the disbarment of an attorney are intended to protect generally the administration of justice, to save the legal profession from degradation by unworthy membership, and to guard the interests of litigants against injury from those intrusted with their legal business.</p> <p>2. The power to act in connection with contempt is lodged with the court before or against whom the offense is committed. Authority for proceeding in disbarment is possessed exclusively by the tribunal authorized to grant licenses admitting to the profession. The former is punished by fine or imprisonment, and may be largely ex parte. The sole penalty in connection with the latter is a prohibition from practicing in the courts of record, and this judgment can only be entered upon notice of charges preferred, and opportunity for defense. A contempt may constitute a ground for disbarment; but it by no means follows that the cause for disbarment must, in all cases, constitute a contempt.</p> <p>3. If a judge and attorney meet outside the court room and engage in an altercation about some matter in no way connected with judicial action, they are, and ought to be, upon precisely the same footing, in all respects, as other private citizens; when the attorney, by wilful misconduct toward a judge, on account of judicial acts, interferes with or impedes the dignified and proper administration of the law, or is guilty of conduct which tends to do so, whether in the court room or on the street, he is guilty of official misconduct.</p>

<p> Appeal from County Court of Arapahoe County. </p> <p>The facts are stated in the opinion.</p>

Bassett, the plaintiff in error, commenced his action in attachment, against the defendant in error, before a justice of the peace of Saguache county, upon a promissory note alleged to have been executed and delivered by defendant in error to one Roney, and by the latter assigned to plaintiff in error; also, upon an account due from defendant in error to one Fry, and assigned to plaintiff in error.

<p>1. An indictment for a statutory offense is sufficient which charges the offense in the language of the statute, or so plainly that the nature of the offense can be easily understood by the jury.</p> <p>2. Upon the trial of one indicted for forgery it is not error to admit evidence tending to prove that the defendant uttered or passed the forged instrument.</p> <p>3. The statute makes the offense of forgery to consist in the forging or counterfeiting the handwriting of another with the intent to damage or defraud some person.</p>

<p>1. Misjoinder of causes of action is ground for demurrer, and unless so taken advantage of cannot be made available in this court; and even if raised by demurrer, the objection is waived by answering over.</p> <p>2. Parties have the undoubted right to submit, by agreement, any issues of fact, equitable or legal, to a jury for determination, and having done so, they will not afterwards be heard to complain.</p> <p>3. The weight of evidence does not wholly consist in its volume nor in the number of individuals sworn.</p> <p>4 This court will only interfere with the finding of a jury on the evidence, when, upon the whole record, it appears that the jury acted so unreasonably in weighing testimony as to suggest a strong presumption that their minds were swayed by passion or prejudice, or that they were governed by some motive other than that of awarding impartial justice to the contending parties.</p>

<p>In this case held, that if it be conceded that defendant would be entitled, upon a proper showing, to damages by way of set-off against the plaintiff’s demand, he proved no damages, and therefore cannot be heard to complain after judgment.</p>

<p> Appeal from County Court of Arapahoe County. </p> <p>The case is stated in the opinion.</p>

<p> Error to County Court of Arapahoe County. </p>

<p>In an action to cancel and set aside a deed of record, on the ground that it was never delivered, and its possession procured by the grantee by fraud — the grantee being dead, his heirs are necessary parties. A complaint against the executrix only, held bad on demurrer.</p>

<p>The supreme court may reverse, and direct what judgment shall be entered in the court below*</p>

<p> Appeal from County Court of El Paso County. </p> <p>The facts are stated in the opinion.</p>

<p> Error to District Court of Bowlder Qounty. </p>

<p>1. It was no doubt the intention of the framers of the constitution that cities and towns, organized after its adoption, should be organized under general and not special laws. Section • 13, article XIV. But that it was not intended to interfere with the city of Denver, and other cities and towns acting under special charters previously granted by the territorial legislature, is apparent from section 14 of article XIV.</p> <p>2. While the prevailing spirit of the constitution is opposed to special legislation, it is not, however, prohibitory of all special legislation, but only such as relates to certain specified subjects, and to such other cases where general laws are applicable.</p> <p>3. Whenever it is sought to deprive a person of his property, or to create a charge against it, preliminary to, or which may be made . the basis of taking it, the owner must have notice of the proceeding and be afforded an opportunity to be heard as to the correctness of the assessment or charge.</p> <p>4. A valid assessment cannot be made under an invalid ordinance, and its constitutionality is to be tested, not by what has been done under it, but by what it authorizes to be done by virtue of its provisions.</p>

<p>1. Obligation, as employed in section 1834 of the General Statutes, and section 14 of the code (section 13, Code of 1883), does not embrace or apply to oral contracts.</p> <p>2. The code abolishes forms of action merely, and provides a single •method of pleading. It does not undertake to do away with the distinction between legal and equitable causes of action. It is still the general rule that equitable relief cannot be secured unless an equitable cause of action or defense appear in the pleadings.</p> <p>3. Except in certain specified cases, the court has no power to vacate a judgment after the term at which it was rendered.</p> <p>4. The equitable doctrine that partnership debts are joint and several, does not obtain in a purely legal action.</p>

<p>1. In. an action of forcible entry and detainer, under the statutes of this state, an appeal does not lie from a judgment of a county court to this court.</p> <p>2. It is doubtful whether the correctness of the ruling of a county court, in denying an appeal to this court in such a case, can be presented on a writ of error to the original judgment.</p> <p>3. Where a tenant occupied premises for several years, and then entered into a lease for one year certain, held, under the facts in this case, that his former occupancy did not inure to his benefit and constitute him a tenant from year to year, upon his holding over after the expiration of his lease, and so entitle him to three months’ notice to quit, under the statute.</p>

<p>1. The general current of authorities supports the view that when municipal corporations are invested with the exclusive authority and control over streets and bridges, with power for raising money for their construction, improvement and repair, a duty arises to the public — whether expressly enjoined in the charter or not — from the nature of the powers granted, to keep them in a reasonably safe condition for the .ordinary mode of use to which they are subjected, and a corresponding liability rests upon such corporations to respond in damages to those injured by a neglect to perform the duty. Such duty is municipal or ministerial, and not governmental or discretionary. Daniels et al. v. City of Denver. 2 Col. 669, distinguished.</p> <p>2. If the plaintiff, in his own case, shows that he brought the injury upon himself, he may be nonsuited. But if the defendant’s failure of duty and the injury to the plaintiff are shown, and it does not appear that the plaintiff brought on the injury by Ms own negligence, such proof must come from the defendant.</p> <p>3. When the measure of duty is ordinary and reasonable care, the •question of negligence is one for the jury to determine. When the plaintiff has made a prima faeie case, the court will not take it from the jury.</p> <p>4. Where the amount of damages does not depend on computation, as in case of personal injuries, to warrant the court in setting aside the verdict as excessive, it must appear that the amount of damages given by the jury is so disproportionate to the injury received, as to show that the jury were influenced by prejudice, misapxirehension, or some corrupt or improper consideration.</p> <p>5. The court, in furtherance of justice, may, in its discretion, allow the usual order of introducing testimony to be departed from. When the defense relies upon expert testimony, it is entitled to put it in after all the evidence bearing on the question offered by plaintiff. And if the court allows plaintiff to vary the state of facts after the expert testimony has been heard, the expert witnesses may be recalled. If no offer to recall them be made, the case will not be reversed.</p>

<p> Error to District Court of Arapahoe County. </p> <p>The facts are stated in the opinion.</p>

On May 4, A. D. 1881, Elizabeth J. Knight and Rebecca Moseby filed their complaint in Arapahoe county court, against William Barnett and Michael Spangler, averring “.That July 29, 1874, Rachael A. Carr, mother of plaintiffs, became the owner in fee of lots 29, 30, block 46, etc., by purchase from one Failing, who conveyed the same to her by deed, duly recorded, etc., and continued so until the same was sold by her to plaintiffs.

<p> Error to District Court of Arapahoe County. </p> <p>The facts are stated in the opinion.</p>

<p> Appeal from District Court of Fremont County. </p> <p>The facts are stated in the opinion.</p>

<p> In Supreme Court. </p> <p>Application for release from penitentiary on habeas corpus.</p>

Appellant filed complaint in Clear Creek district court against appellees, averring: That September 6, 1870, George Way was the owner of premises then situate in the public domain, to wit, a certain mill site and water-power with the mill building, etc., and on or about the same day executed to the Franklin Silver Mining Company a title bond, conditioned to convey the same; that about February 1, A. D. 1871, the Franklin Company assigned the same to one McFarland; that about…

<p>In the absence of proof of actual notice, a mortgagee under a chattel mortgage, with insufficient description, and not recorded in the county in which the personal property is found in the possession of the mortgagor, may not defeat the rights of a purchaser thereof at judicial sale.</p>

<p> Appeal from District Court of Arapahoe County. </p> <p>The case is stated in the opinion.</p>

<p> Error to. County Court of Arapahoe County. </p>

<p> Error to District Court of Arapahoe County. </p> <p>The facts are stated in the opinion.</p>

<p> Error to District Court of Chaffee County. </p> <p>The case is stated in the opinion.</p>

<p>No appeal lies from a judgment imposing a penalty for contempt of court.</p>

<p> Appeal from District Court of Latee County. </p> <p>Motion to dismiss appeal.</p>

<p> In the Supreme Court. </p>

<p>1. Where property is found by the officer in the actual custody of the person named in his execution, the levy thereon gives the officer lawful possession; and in such case a demand is an essential prerequisite to suit in replevin against the officer. But when the property is found in custody of a stranger to the writ, the officer’s possession under his levy is wrongful and no demand is necessary.</p> <p>2. Declarations of the party in possession, explanatory of the possession, or explanatory of the title he is claiming, may be given in evidence by himself or those holding under him, where either of these matters is properly in issue. But they are proof only that such was the character of the possession, or such was the title claimed; they are no evidence of the title actually held; and where the issue is, not what was the nature of the possession, nor what was the title claimed, but which party, plaintiff or defendant, was the actual owner, such declarations are not admissible.</p>

<p>Petition for writ of prohibition.</p>

<p> Appeal from District Court of Arapahoe County. </p> <p>The facts are stated in the opinion.</p>

<p> Appeal from County Court of Gunnison County. </p> <p>The case is stated in the opinion.</p>

<p>Under the statutes of this state the service of a summons by a plaintiff in the cause is void, and a judgment entered in the absence of the defendant and upon such service is a nullity.</p>

This was an action brought to determine whether the office of police judge, provided for by the charter of Georgetown, was abrogated by the subsequent adoption of the constitution.

<p> Appeal from District Court of Gunnison County. </p> <p>The case is stated in the opinion.</p>

<p>1. Section 1498 of the General Statutes, regarding the change in the terms of a lease, applies to tenancies from month to month, and not to a tenancy for one month.</p> <p>2. A tenant of demised premises holding over is deemed in law to hold as tenant at the same rent previously paid, if there be no new agreement. But if he has notice from his landlord that, in case he retains possession, he must pay a higher rent, specified as to amount at the time, he must be deemed to assent to such increased rental.</p>

<p>1. An affidavit in attachment, stating as ground therefor “that the demand is due on express contract for the direct payment of money, to wit, upon three several promissory notes now overdue,” and giving the amount, held a good ground of attachment under the fourteenth subdivision of the attachment act.</p> <p>2. The connected structure of a pleading cannot be destroyed or dis-joined at the pleasure of the pleader, and its disconnected averments separately demurred to.</p> <p>S. A pleading, to be subject to demurrer, must present defects so substantial in their nature, and so fatal in their character, as to authorize the court to say &emdash;• taking all the facts to be admitted &emdash; that they furnish no cause of action whatever.</p> <p>4. Upon discovery of fraud in a contract of sale, the vendee has his election to rescind the sale and return the property, or to retain the property and prosecute his claim for damages, either by original action or as a counterclaim to an action against him for the purchase money brought by the party committing the fraud.</p> <p>5. It is well settled that the good will of a business may have a property value and form the subject-matter of a contract and sale; and the contract being an entirety, for the stock and good will, the vendor may not relieve himself of liability by proving that the stock was worth the amount of the purchase money.</p> <p>6. If the property sold is more valuable than the consideration expressed in the contract, the profits of the bargain legitimately belong to the purchaser.</p> <p>7. The rule for the estimation of damages resulting from fraudulent representations in the sale of both real and personal property is the same. It is to ascertain the difference between the value of the property as it actually existed on the day of sale, and its value as it was represented to be.</p> <p>8. In alleging damages it is only necessary to particularly specify the items, when the damages claimed are not the direct and necessary consequence of the wrong complained of.</p> <p>9. In this case held that the fact that the demands sued on were assigned to plaintiff does not exonerate him. It is charged that the false representations were made by him, and he must be held personally responsible for the consequences.</p>

<p> Appeal from District Court of Arapahoe County. </p> <p>The facts are stated in the opinion.</p>

<p>1. Under section 28 of the code, action upon a contract, wherein no place of performance is specified, may be brought in the county where the plaintiff resides.</p> <p>2. To maintain an action at law for the balance found due upon a settlement of partnership accounts, an averment in the complaint of the settlement is essential, and without such averment the pleading is fatally defective.</p> <p>8. A defective averment may sometimes be cured by verdict; but the entire absence of a material averment is fatal to a recovery.</p>

<p>1. The justices of this court,. acting singly out of term, are without jurisdiction to issue writs of habeas corpus, or to hear and determine matters arising thereon, notwithstanding the authority attempted to be conferred by the statute on habeas corpus.</p> <p>2. The proceeding by habeas corpus is the proper remedy, under the statute of this state, to protect the right of persons charged with the higher class of crimes to a speedy trial, according to law.</p> <p>3. In this case there were four successive terms of the district court, and one of the criminal court, to which the case had been transferred, at each of which the court had jurisdiction; at any one of the terms the petitioner might have been tried, but was not; the failure to try did not happen on the petitioner’s application, he being in)custody the entire time. Held, under the General Statutes (section 1016), upon which the petition is based, that the petitioner be discharged.</p>

<p>Where a broker, employed to sell real estate within “a short time,” found a purchaser to take at the price fixed by the vendor, the vendee paying down a small sum to bind the bargain, and no notice being given the broker of withdrawal or change of terms, held, that two weeks was reasonable time within which to find a purchaser, and that a rise in value was no defense against the broker, seeking to recover commissions.</p>

<p> Appeal from District Court of Arapahoe County. </p> <p>The case is stated in the opinion.</p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p>The failure to record a chattel mortgage is fatal to its validity while , the property remains in the hands of the mortgagor. An excep- *1 tion is recognized by the authorities where the possession in fact is in the mortgagee, but the mortgagor, bona ficle and as agent for the mortgagee, continues to sell and appropriate the proceeds to the payment of the mortgage debt.</p> <p>2. Where it was shown that new goods were purchased and mixed with the original stock from, time to time after the giving of the mortgage, and no testimony establishing the identity of any portion of the goods seized by an attaching creditor, as the same goods mentioned in the mortgage, and the mortgage making uo provision for goods to be afterward acquired, held, fatal to recovery under the mortgage.</p> <p>3. Under the statute of frauds, as interpreted by this court, the vendee of chattels must take the actual possession, and the possession must be open, notorious and unequivocal, such as to apprise the community, or those accustomed to deal with the party, that the goods have changed hands and that the title has passed out of the seller to the purchaser.</p> <p>4. As a rale, when acting in furtherance of the objects and business of the firm and within the scope of its business, one partner is clothed with full powers of all the partners, and is authorized to bind the firm in all transactions. This power and authority is based upon the principle of agency. But one.partner cannot, against the opposition of another, make a general assignment for the benefit of a portion of the firm creditors, when such creditors, or their agent, have notice of such opposition.</p>

<p>Where a complaint failed to state sufficient facts to show wherein the refusal of defendant to remove his house from the ground in controversy was wrongful or unlawful, or that the damages claimed were the direct result of a' wrongful or unlawful dispossession, occupation, trespass or detention, held bad on demurrer.</p>

<p>l. In civil actions for injury resulting from torts, where the offense is punishable under the criminal laws, exemplary damages, as a punishment or example, cannot be awarded. Quaere, whether the recovery in all cases should not be limited to a liberal rule of compensatory damages ?</p> <p>3. In actions for malicious prosecution, malice may be implied or imputed from the absence of probable cause.</p> <p>3. But affirmative evidence of language or acts an the part of the . prosecutor, tending to show actual malice, are admissible in evidence when they are so closely connected with the transaction as to be part of the res gestee.</p>

<p> JSrror to County Court of Boulder County. </p> <p>The case is stated in the opinion.</p>

<p>1. The rule of law is that the debtor may direct, on paying money to his creditor, the appropriation of it to a particular account or item of indebtedness; but if he make or indicate no such appropriation, the creditor may apply the money as he pleases. When money is paid generally on an account, without any appropriation, the rule is that it should be applied to the first items in the account.</p> <p>2. Wilful ignorance is equivalent in law to actual knowledge. He who abstains from inquiry, when inquiry ought to be made, cannot be heard to say so and rely upon his ignorance.</p>

<p> Appeal from. County Court of Lake County. </p> <p>The case is stated in the opinion.</p>

<p> Error to County Court of Pueblo County. </p> <p>The case is stated in the opinion.</p>

<p>1. Where one is employed to serve for a definite term, as for a year, and is discharged before the expiration of the term without fault on his part, he has a right of recovery, either for the balance of wages due, or damages for the loss he may have suffered by reason of the wrongful discharge.</p> <p>2. In an action for a breach of contract, in such case, whether brought before or after the end of the term, the measure of damages is not the amount of wages stipulated in the contract for the entire term, but the actual loss, although the amount of the agreed wages may be taken as the measure of damages prima facie, or in the absence of any other showing.</p> <p>S. In such case the plaintiff cannot recover the wages accruing for the balance of the term as a matter of course. ■ He is bound to use reasonable efforts to secure labor elsewhere. If he secures labor, or by reasonable diligence might have done so, the amount received, or that might have been received, must be deducted from the amount of damages occasioned by the breach of the contract.</p> <p>4 While tiie defendant may mitigate the damage to the extent of what the plaintiff might have earned from other parties during the term, the burden of establishing such mitigating facts is on the defendant.</p> <p>5. The power of a general agent cannot be restricted by secret instructions of his principal, so as to affect a party dealing with such agent, without notice of the covert instructions.</p> <p>6. In pleading, ultimate and not evidential facts must be stated. A breach must be stated, or there is no cause of action shown. The essential facts must be stated in unequivocal language, and not left to be inferred. The plaintiff is not at liberty to make out his case by proving facts not alleged in his complaint.</p>

<p>1. In a complaint it is not proper to anticipate a defense, and, upon motion to strike out, such matters should he rejected.</p> <p>2. The statute of limitations does not run against a creditor who is prevented by a superior law from bringing his action.</p> <p>3. Where a plaintiff, for the purpose of avoiding defendant’s plea of the statute of limitations, avers in his replication the pendency of voluntary proceedings under the bankrupt law by the defendant, the claim sued upon being a provable one in the bankruptcy court, it further devolves upon plaintiff to also sufficiently aver that the same has not been proved therein.</p> <p>4. The court in bankruptcy may, under the statute, upon application of the bankrupt, restrain proceedings of a creditor in the state court, upon a provable claim, where there has been no unreasonable delay by the bankrupt in procuring his discharge. But if the bankrupt neglects to invoke the aid of the bankruptcy court in that way, no valid objection exists to the state court adjudicating the question when properly presented therein.</p>

<p>1. In an action by an assignee of a judgment, an averment of the assignment of the judgment is necessary, and a denial of the averment necessarily presents a material issue.</p> <p>2. The defendant has the right to controvert and put in issue every material averment of the complaint. This is to be done by means of specific denials, and such denials may be made upon information and belief, when the facts are not presumptively within the defendant’s knowledge.</p> <p>3. Whether an assignment of a judgment is bona fide, a,nd the plaintiff the owner of the judgment at the time of action brought, are facts presumptively within the knowledge of the plaintiff, but not presumptively within the knowledge of the defendant.</p> <p>4. There is nothing in the statute requiring the jurisdictional averment to be in a prescribed form in an action in a county court. The requirements of the statute are satisfied by averments in the complaint which are equivalent to an allegation that the amount in controversy does not exceed $2,000.</p>

<p>A referee was directed to try the issues presented and report findings upon the law and facts; exceptions were reserved and subsequently overruled, and judgment entered by the court on the referee’s report ; but no exceptions being reserved either to the ruling upon the issues presented by the report and the exceptions thereto nor to the final judgment rendered by the court, held that this court is precluded from reviewing the judgment on the evidence.</p>

<p>Where an office was recognized under the organic act of the territory, and where the same office is recognized under the state constitution, it is a matter of no consequence that the existence thereof under the former instrument was by virtue of certain powers conferred upon justices of the peace, while under the latter its validity depends upon a provision relating to judicial officers for cities and towns.</p>

<p>1. It is a well settled rule, upon the subject of negligence, that when the plaintiff so far contributed to the disaster by his own negligence or want of ordinary care and caution, that but for such negligence or want of care and caution on his part, the misfortune would not have happened, he is not entitled to recover.</p> <p>3. Cases frequently arise wherein it becomes the duty of the trial court to determine the question of the negligence of the party as a matter of law. But where the conclusion from the evidence is fairly debatable, or rests in doubt, the question of negligence is always for the jury.</p> <p>3. To warrant the court in instructing the jury that a party was guilty. of negligence, the case must be such as to allow no other inference from the evidence.</p>

<p>1. Error cannot be maintained upon the refusal of the court to give an instruction not applicable to the case made by the evidence. And under the facts in this case, held that the promise upon which action was brought was a promise to pay the liabilities of the promisor, and not such a case as could be brought within the statute of frauds, which was pleaded in bar.</p> <p>2. Under section 74 of the code, as amended upon the overruling of a demurrer to a complaint during term, the court shall, by order, fix the time to answer.</p> <p>3. In a petition for change of venue, either in respect to the prejudice of the judge or the inhabitants of the county, sufficient facts, beyond the bare allegation of prejudice, should be set out by the petitioner, from which the court may be able to judge of the probable truth or falsity of the averments.</p>

<p>1. A comparison of section 2 of the statute establishing the State Industrial School with section 6 of article 4 of the constitution, shows that while an officer appointed to fill a vacancy by virtue of the provisions of the statute holds the office for the unexpired term of his predecessor, one appointed under the provisions of the constitution holds only until the next meeting of the senate.</p> <p>2. There being no constitutional restrictions imposed, it is competent for the legislature to provide the manner of making original ap- • pointments, the terms of office, how vacancies shall be filled, and when the term of an incumbent appointed to fill a vacancy shall expire.</p> <p>3. It is a fundamental rule of interpretation that every law is adopted as a whole; and a clause which, standing by itself, might seem of doubtful import, may yet be made plain by comparison with other clauses or portions of the same law. The intent and purpose of a law is to be considered in its interpretation.</p> <p>4. The word vacancy has no technical or peculiar meaning, as used in the statute (Laws 1881, p. 132, sec. 2); it means empty and unoccupied, as applied to an office without an incumbent. An office is not vacant while any person is authorized to act in it, and does so act.</p>

<p> Appeal from District Court of Chaffee County. </p> <p>The facts are stated in the opinion.</p>