Volume 70 — Colorado Reports

<p>1. Attorney and CLiENT-r-Hees. Where an attorney presents an unitemized bill for services, to the receiver of a corporation, and it appears that a part only of the bill is a proper charge against the company, an order of court directing the receiver to pay the entire amount will not be sustained, it being impossible to determine from the record the value of the services for which a charge could properly be made.</p> <p>2. Corporations — Attorney Fees. Money of a corporation cannot rightfully be paid out for services rendered by an attorney to directors in defending their misdeeds in office.</p>

<p>Action to quiet title. Judgment for plaintiff.</p> <p> Error to the District Court of Alamosa County, Hon. J. C. Wiley, Judge. </p>

<p>Action for refund of taxes paid under protest. Judgment for defendant.</p> <p> Error to the District Court of Boulder County, Hon. George H. Bradfield, Judge. </p>

<p>1. Adjudicated Cases. Judgment affirmed on authority of Colorado & Southern Railway Company v. Board of County Commissioners of Boulder County, No. 9767.</p>

<p>Action for refund of taxes paid under protest. Judgment for defendant.</p> <p> Error to the District Court of Boulder County, Hon George H. Bradfield, Judge. </p>

<p>Action on promissory note. Judgment for plaintiff.</p> <p> Error to the District Court of Mesa County, Hon. Thomas J. Black, Judge. </p>

<p>1. Judgment — Power of Court Over. It is uniformly agreed that courts have absolute power over their judgments during the term at which rendered, unless such jurisdiction is lost by appellate or other procedure.</p> <p>2. Divorce and Alimony — Pinal Decree. In an action for divorce where the pleadings present the question of permanent alimony for determination, a final conclusive decree cannot -be entered without a determination of that question.</p>

<p>1. Bonds — Principal and Surety — Liability. Though there he actual duress of imprisonment or illegal detention of the principal, yet if the surety has full knowledge of the circumstances attending the detention, and, notwithstanding such knowledge voluntarily enters into the obligation, he is bound thereby.</p> <p>2. Ne Exeat Bond — Authority of Sheriff to Take. The sheriff is ordinarily the officer to take a ne exeat bond. In the instant case he was expressly so authorized by order of court.</p> <p>3. Ne Exeat Bond — Condition. A ne exeat bond should be conditioned that the defendant will not go beyond the jurisdiction of the court without permission. If it contains other unauthorized conditions they may be treated as surplusage and do not render the bond invalid.</p>

Action against a corporation for alleged conversion of dividends. Judgment for plaintiff by default. On Application for Supersedeas. Error to the District Court of the City and County of Denver, Hon. Greeley W. Whitford, Judge.

<p>Action to recover value of corporate stock. Judgment for plaintiff.</p> <p> On Petition for Rehearing. </p> <p> Error to the District Court of the City and County of Denver, Hon. Charles C. Butler, Judge. </p>

<p>1. Appeal and Error — Sufficient Evidence. A judgment will not be reversed, where it is supported by sufficient evidence, that being the only question presented for review.</p>

<p>1. Divorce and Alimony — Prior Decree — Dismissal. In an action for divorce and alimony, defendant pleaded a former decree in his favor rendered in a foreign state. Plaintiff replied that that decree had been obtained fraudulently and without service on, or appearance by her, and that the foreign court had no jurisdiction.' Held, that the defense was not a plea to the jurisdiction, but one of res adjudícala and that it was error to dismiss the cause without trial on the ground that the court had no jurisdiction by reason of the decree of the foreign court.</p> <p>The motion to dismiss treated as a motion for judgment on the pleadings or a demurrer to fhe replication; the latter would have been the proper method of reaching the question.</p> <p>2. Pleading and Practice — Judgment of Foreign State. Upon a plea of former judgment rendered in a court of another state, it is necessary to allege the jurisdiction of that court, and a denial thereof raises an issue of fact.</p> <p>' 3. Judgment — Of Foreign State Court — Attack. Even against the full faith and credit clause of the federal constitution, it is permitted to assail the jurisdiction of a court of another state and to prove facts which negative the same.</p> <p>4. Divorce and Alimony — Alimony and Property Rights. A wife is not barred from her right to be heard on the questions of alimony and property rights by a decree of divorce against her in the court of a foreign state rendered without actual service upon or appearance by her in such proceeding.</p>

Action involving allowance of appeal from an order of the county court approving a preliminary report of an administrator. Appeal allowed by district court. Error to the District Court of Rio Grande County, Hon. Jesse C. Wiley, Judge.

Proceeding involving the question of temporary alimony in an action for divorce. Payment ordered. Error to the County Court of the City and County of Denver, Hon. Ira C. Rothgerber, Judge.

<p>Proceeding to revoke the license of a physician. License revoked.</p> <p> Error to the District Court of the City and County of Denver, Hon. Greeley W. Whitford, Judge. </p>

<p>1. Appeal and Eebor — New Trial. Tlie supreme court in reversing a judgment, inadvertently stated that the complaint alleged no cause of action. On retrial, a motion to dismiss on the ground that the appellate court had held the complaint insufficient, was sustained. The cause again coming to the supreme court, and it appearing that the pleadings presented an issue which should he tried, the judgment of dismissal was reversed and the cause remanded.</p>

<p>1. Instructions — Measure of Damages. On a review of the instructions, held, that the issues were fairly submitted to the jury.</p>

<p>1. Evidence — Secondary. It is not error to exclude secondary evidence of the contents of a telegram, in the absence of a showing that the original cannot be produced.</p> <p>2. Criminax. Law — Evidence. The defense to the alleged larceny of an automobile was the absence of criminal intent, defendant claiming that he took the machine as the only means of going to his sick wife. On the trial the wife’s evidence was offered to show how ill she was; in the absence of any claim on the part of the defendant that that fact had been communicated to him, the offered testimony was clearly immaterial.</p> <p>3. Criminal Law — Instructions. It is not error for the trial court to refuse reauested instructions on matters amply covered by the language of instructions given.</p>

<p>Action to foreclose mechanic’s lien for material furnished. Judgment of dismissal.</p> <p> Error to the County Court of Logan County, Hon. W. Mabry King, Judge. </p>

<p>1. Contract — Time of Performance — Reasonableness. The fact that one might have completed the performance of a contract sooner by the exercise of greater diligence is not conclusive of the question of reasonable time. The actual time consumed may still have been reasonable.</p> <p>2. Words and Phrases — Reasonable Time, in connection with a contract, may be such time as is necessary conveniently to do what the contract requires should be done.</p> <p>3. Evidence — Expert Testimony not Conclusive on Jury. The judgment of experts, even when unanimous and uncontroverted, is not necessarily conclusive on the jury.</p>

Action for damages resulting from the killing of a cow by an automobile. Judgment for plaintiff. On Application for Supersedeas. Error to the County Court of Garfield County, Hon. R. J. Smith, Judge.

Action against a garage keeper for damages resulting from the destruction of automobiles by fire. Judgment for plaintiff. Error to the District Court of Mesa County, Hon. Thomas J. Black, Judge.

<p>■ 1. Vekdob and Pubcíiaser — Warranty—Notice. In. the sale of a threshing machine the warranty of the vendor required the purchaser within six days after beginning to use the machine to give notice to the local agent and to the home office of the company, of any claimed defect. The machine did not work satisfactorily and notice of such fact was given the company’s local office, but none was sent to the home office Pursuant to the notice experts were sent from the local office, who failed to make the machine work. In an action by the purchaser for breach of warranty, held, that notice to the local agent and appearance of an expert who tried to make the machine work, made notice to the home office unnecessary.</p> <p>2. Warrants — Construction. Contracts of warranty are drawn by the warrantors and are to be construed most strongly against their authors.</p> <p>3. Forfeiture — Contracts. Courts are not disposed to construe contracts so as to work a forfeiture, except in very clear cases.</p> <p>4. Vendor .and Purchaser — Warranty—Defective Parts. The seller of a threshing machine stipulated that before the purchaser could • return it, he must return the parts alleged to be defective and give the company an opportunity to correct them. In an action for breach of warranty, held, that as the evidence did not show what particular parts of the machine were responsible for its failure to do good work, there was no obligation on the part of the purchaser to return any parts.</p>

Action in mandamus to compel the state board of land commissioners to issue a patent for state land. Demurrer to writ sustained and proceedings dismissed. Error to the District Court of the City and County of Denver, Hon. Henry J. Hersey, Judge.

<p>1. Lease — Guaranty. One of three lessees of a hotel property agreed with the others that in consideration of their managing the hotel and protecting him from any charges or demands growing out of the lease, he would guarantee to them the payment of rent by a sub-lessee of the saloon privileges. Held, that the guaranty was special and not assignable.</p> <p>2. Appeal and Ebbob — Instructions. An instrument not being assignable, it was error for the court to leave to the jury the question of whether or not it had in fact been assigned.</p>

<p>Action to quiet title. Judgment for defendant.</p> <p> Error to the District Court of the City and County of Denver, Hon. Julian H. Moore, Judge. </p>

<p>Action to establish and enforce a trust. Judgment for plaintiffs.</p> <p> Error to the District Court of Jefferson County, Hon. Clarence J. Morley, Judge. </p>

<p>1. Pleadings — Conclusions—Admissions. A denial of allegations of a complaint which state conclusions of the pleader and anticipate a possible defense, raises no issue, and where the material allegations have been expressly admitted, general denials are without force.</p> <p>2. Unlawful Detainer Act — Pleading Evidence.. The provision of the unlawful detainer act, sec. 2612, R. S., 1908, that the answer shall set forth “all the substantial facts,” does not require the pleading of evidence.</p> <p>3. Ultimate, not Evidential Facts, to be Pleaded. An allegation that, for a stated consideration, the defendant undertook, or promised, or that under seal he agreed to do certain things, is a statement of ultimate fact. Averments of a defense which state evidential, but not the ultimate, facts, are insufficient.</p> <p>4. Appeal and Error — Verdict and Judgment — Harmless Error. Where there is no issue for the jury, it is irregular for the -court to direct a verdict, but if the final judgment is correct, the error is without prejudice.</p> <p>5. Pleading — Amendment. Where, if a specific amendment to an answer had been allowed, no defense would have been stated, a denial of leave to amend does not constitute prejudicial error.</p>

<p>1. "Worms and Phbases — “Public Works.” The term “public works” may include works either of construction or adaptation undertaken to subserve some purpose of public convenience, as the paving of streets.</p> <p>2. Municipal Cobpobations — Special Elections — Bonds. Under the provisions of sec. ft, art. XX of the Colorado Constitution and sec. 2 (d) of art. I, of the charter of Colorado Springs, that city is given full power to call special elections for voting for the issuance of all kinds of municipal obligations for public improvements.</p> <p>3. Elections. Sec. 126 of the charter of Colorado Springs, providing that not more than one special election shall be held in any period of twelve months, deals only with the initiating and referring of ordinances, and has no application to a special election called for the purpose of voting bonds for public works.</p> <p>4. Elections — Regularity: Mere informalities of the election officers in holding, ascertaining and declaring the result of a bond election, will not vitiate an election otherwise fair and impartial.</p> <p>5. Pleadings' — ■Elections. A complaint attacking the regularity of a special municipal election' for voting bonds, which does not allege facts showing the irregularities complained of changed the result of the election, does not state a cause of action.</p>

<p>1. Constitutional Law — Anti-Coercion Act. The Anti-Coercion Act, chap. 5, S. L. 1911, held to be in violation of the “due process” clause of the federal constitution.</p> <p>2. Courts- — Jurisdiction Over Constitutional Questions. Trial courts have jurisdiction to determine federal constitutional questions, notwithstanding the provisions of sec. 1, art. VI of the state constitution, providing that the supreme court shall have exclusive jurisdiction to determine such matters.</p> <p>3. Constitutional Law — Jurisdiction—Recall of Decisions. When a federal constitutional question is raised in any of the trial courts of Colorado, the right is given and the duty imposed upon those courts to adjudicate and determine it.</p> <p>Decisions of the supreme court upon such questions cannot be reviewed by popular vote of the citizens of Colorado or one of its municipalities, and any pretended constitutional provision of this state assuming to provide such method of review is null and void.</p>

Information against defendant in error for practicing medicine without a license. Motion to quash and demurrer sustained. Error to the District Court of the City and County of Denver, Hon. Henry J. Hersey, Judge.

<p>Action for injunction restraining the construction of a drainage canal. Judgment for defendant.</p> <p> Error to the District Court of Prowers County, Hon. A. F. Hollenbeck, Judge. </p>

<p>1. Pleading — Certiorari—Answer. A petition for certiorari requires no answer. It has served its purpose when the writ is issued, and its allegations are not taken as tendering an issue.</p> <p>2. Certiorari — Purpose. On certiorari, the review extends only to a determination from the record alone on the question “whether the inferior tribunal regularly pursued its authority and thereupon pronounced judgment accordingly.’’</p> <p>A cause heard on certiorari, can not he determined on its merits.</p> <p>3. Words and Pi-ieases — “Atuse of Discretion," is a failure by the tribunal, regularly to pursue its authority. This does not include the commission of errors at law, or mistakes in finding of facts.</p> <p>4. Physicians and Surgeons — lácense. Applicant for a license to practice chiropractic, appeared before the board of medical examiners and introduced evidence on a hearing four months after the filing of his application. Held, that he was not entitled to a further hearing on thirty days notice under the provisions of sec. 11, chap. 94, S. L. 1917.</p> <p>5. State Board of Medical Examiners — Findings. Failure of the board to make specific findings is not prejudicial to an applicant for a license to practice, where the application was dismissed “on the ground that the board was not satisfied that he possessed the Qualifications required by the statute to entitle him to a license.”</p> <p>6. Practice — On Certiorari. On certiorari, if it be found that the inferior tribunal has exceeded its jurisdiction, or failed regularly to pursue its authority, the duty of the court is to remand the cause for a rehearing.</p>

<p>Action on promissory note and renewal agreement. Judgment for defendants.</p> <p> Error to the District Court of Boulder County, Hon. Neil F. Graham, Judge. </p>

<p>Action for attorney fees. Judgment for plaintiff. .</p> <p>Error to the District Court of the City and County of Denver, Hon. Julian H. Moore, Judge.</p>

<p>1. Bills and Notes — Drafts—Ownership. Wherb a company deposits drafts unconditionally with a hank, receives credit therefor and checks against the amount in the regular course of business, the bank becomes the owner of the fund, which is not subject to garnishment in a suit by a third party against the depositor.</p>

<p>Action to cancel deed and for damages. Judgment for defendants.</p> <p> Error to the District Court of the City and County of Denver, Hon. Clarence J. Morley, Judge. </p>

Action for damages to an automobile occasioned by a collision with a railway motor car. Judgment for plaintiff. Error to the District Court of Weld County, Hon. Neil F. Graham, Judge.

<p>Action for accounting for partnership property. Judgment for plaintiff.</p> <p> On Application for Supersedeas. </p> <p> Error to the District Court of the City and County of Denver, Hon. Greeley W. Whitford, Judge. </p>

<p>Action to compel county treasurer to transfer tax certificates. Decree for defendants.</p> <p> Error to the District Court of the City and County of Denver, Hon. Clarence J. Morley, Judge. </p>

<p>1. Pleading — Complaint. Allegations of the complaint in an action to recover a commission for the sale of real -property, reviewed and held to state a cause of action.</p> <p>2. Appeal and Ebeoe — Directed Verdict — Disputed Questions of Pact. It is error for the trial court to direct a verdict, where the evidence, upon a material question involved in the action, is conflicting.</p> <p>3. Assignments of Error — Party not Complying With Court Rules. Assignments of error which are not in compliance with the rules of the appellate court, will not be considered on review.</p>

Proceedings by wife to share in the estate of her husband' who died during the six months period between the trial of a divorce action and the time when the decree of divorce would be entered. Petition for widow’s allowance granted. Error to the County. Court of Montrose County, Hon. S. S. Sherman, Judge.

<p>Action in damages for breach of warranty. Judgment for defendants.</p> <p>Error to the District Court of the City and County of Denver, Hon. Charles C. Butler, Judge.</p>

<p>1. Trial--Nonsuit. Evidence reviewed and the action of the trial court in granting a nonsuit sustained.</p>

<p>1. Courts — Judges—Interest in Action. The trial court and judge thereof, have no interest in the review of a case on writ of error to such court.</p> <p>2. Criminal Law — Writ óf Error Toy the People — Sufficiency of Evidence. Under section 1997, R. S. 1908, authorizing the people to have reviewed decisions of the trial court in criminal cases, the question of the sufficiency of the evidence to establish the corpus delicti will not be entertained by the appellate tribunal.</p>

<p>Proceedings in mandamus. Action settled by parties.</p> <p> Error to the District Court of Saguache County, Hon. Jesse C. Wiley, Judge. </p>

Action for violation of a city ordinance prohibiting the giving of premiums as an inducement for advertising. Judgment for defendants. Error to the County Court of the City and County of Denver, Hon. Ira C. Rothgerber, Judge.

<p>1. Pleading — Complaint—Replevin, In an action in replevin, an allegation in the complaint that “defendant wrongfully keeps and detains said property;,” there having been a verdict, will be deemed to include by implication, one of demand and refusal.</p> <p>2. Defective Pleading — Waiver. Where the matter of demand and refusal in an action in replevin is imperfectly pleaded, the defect is waived by the admission in evidence, without objection, of a demand and refusal.</p> <p>3. Complaint — Defect Cured by Answer. In an action in replevin, the omission from the complaint of an allegation of value, is cured by an admission of value in the answer.</p> <p>4. Replevin — Ownership—Possession. In an action in replevin, proof of the right of possession sustains a general allegation of ownership, and there is no fatal variance.</p> <p>5. Chattel Mortgages — Acknowledgment—Evidence. As between the parties a chattel mortgage is valid, and in an action between them, on proof of execution, is admissible in evidence either with a defective acknowledgment or without any acknowledgment.</p> <p>6. Counterclaim — nonsuit. A nonsuit is properly granted as to defendant’s counterclaims, where the evidence fails to disclose any counterclaim against the plaintiff.</p> <p>7. Pleading — Replication—Verification. Failure to verify a replication, or even the absence of a reply, is waived by going to trial without raising the objection.</p>

<p>Proceedings in garnishment under execution. Judgment for intervenor.</p> <p>Error to the District Court of Adams County, Hon. Samuel W. Johnson, Judge.</p>

Action for specific performance of a contract for the sale of real estate. Judgment for plaintiff. Error to the District Court of Cheyenne County, Hon. Arthur Cornforth, Judge.

<p>Action to recover under a benefit certificate of a fraternal insurance society. Judgment for plaintiff.</p> <p> Error to the District Court of Pueblo County, Hon. James A. Park, Judge. </p>

<p>Contempt proceedings involving the violation of an injunction. Respondent found guilty of contempt.</p> <p> Error to the District Court of Logan County, Hon. L. C. Stephenson, Judge. </p>

<p>Action on promissory note. Judgment for defendant.</p> <p> Error to the District Court of Logan County, Hon. L. C. Stephenson, Judge. </p>

Action in damages for breach of warranty. Judgment for plaintiff and costs assessed against him. Error to the County Court of the City and County of Denver, Hon. E. J. Ingram, Judge.

Action to determine claims to surplus arising from sale of real property under foreclosure: Judgment for defendant in error Maude P. Milliken. Error to the District Court of the City and County of Denver, Hon. Julian H. Moore, Judge.

<p>Action in replevin. Judgment for defendant.</p> <p> Error to the District Court of the City and County of Denver, Hon. Julian H. Moore, Judge. </p>

<p>Action on promissory note. Judgment for defendant.</p> <p> Error to the District Court of the City and County of Denver, Hon. John T. Shumate, Judge. </p>

<p>Proceeding to change the point of diversion of decreed water rights. Change allowed.</p> <p> Error to the District Court of Las Animas County, Hon. A. C. McChesney, Judge. </p>

<p>1. Wills — Contest—Burden of Proof. In a will contest, an instruction wliicb. places upon the contestant the burden of proving a want of testamentary capacity is wrong and constitutes prejudicial error.</p>

<p>1. Municipal Cokpobations — Public Improvements — -Statute—Pleading. See. 5361, R. S. 1908, providing that a resolution of a city council finding a petition for public improvements was subscribed by the required number of property owners, shall be conclusive of the facts so stated, held constitutional, and a demurrer to a complaint setting out the adoption of such a resolution, and alleging that the petition -was not so subscribed, was properly sustained.</p> <p>2. Pleading — Action to Restrain Public Improvements. In an action to restrain a municipality from proceeding with proposed public improvements, a complaint alleging that certain signers of the petition for the improvements withdrew their names after the council had acted on- the. petition, held demurrable.</p> <p>Z. Constitutional Law — Municipal Powers. Subdivision II, C., chap. 120, R. S. 1908, providing for public improvements by municipalities, held not in violation of the fourteenth amendment of the federal constitution.</p>

<p>1. Pleading — Waiver. Claim by defendant, that plaintiff in an action to foreclose a trust deed could not go behind the record title without the consent of the holder of the apparent paramount title, waived by answering over.</p> <p>2. Real Peoperty — Title—JsTotioe. Actual notice of transfers and proceedings affecting the title.to real property is quite as potent and effective as constructive notice conveyed by public records.</p> <p>3. Sheriff’s Deed/ — Caveat Emptor. The doctrine of caveat emptor obtains against a sheriff’s deed.</p>

<p>1. Insubance — Fraternal Societies — By-laics. A by-law of a fraternal insurance society providing that the absence or disappearance of a member without proof of actual death, shall not entitle his beneficiary to recover on a benefit certificate, is unreasonable, and invalid as to a beneficiary under a certificate issued before the adoption of the by-law.</p> <p>2. Death — Presumption. In order to raise, the presumption of death of a person after seven year’s absence without tidings, it must appear among other things, that diligent inquiry and efforts have been made to ascertain his whereabouts; but what is sufficient in the way of efforts to locate the missing person should be measured by the circums,tances of each particualr case.</p> <p>3. Evidence of Search and Inquiry. Evidence of search previous to the date assured was last heard from, held admissible.</p> <p>4. Instbuctiosts — Incomplete—Harmless Error. An incomplete instruction does not afford a basis for reversible error, where the omission is cured by a subsequent instruction.</p> <p>5. Appeal and Error — Instructions—Exception. Unless in an appropriate way, exception to an instruction is made in the court helow, so that its attention is called to the error in law complained of, the instruction will not be considered on -review. This rule is' applicable where the instruction is not clearly and inherently erroneous, and is correct so far as it goes.</p> <p>6. Instructions — Refusal. The refusal of requested instructions will not constitute reversible error where there is only a ■ remote, if any, possibility that the result would have been changed had the instructions been given.</p>

<p>1. Statutes — Foreign State — Judicial Notice. Courts will not take judicial notice of the statutes of another state, and a question involving such statutes will not be determined by the supreme court where they are not set out in the record.</p>

<p>1. Receiver — Appointment Toy Consent. A defendant debtor may appear and waive all objections to the appointment of a receiver.</p> <p>2. Intervention. In the case under consideration, the intervenor was not in a position to question or attack the appointment of a receiver, the court.having jurisdiction of the subject matter and parties.</p> <p>3. Appeal and Error — Receiver—Intervention. Where a petition in intervention is filed in an action involving the appointment of a receiver, questions raised by the petition which have not been disposed of by the trial court, will not be considered on review of the order appointing the receiver.</p>

<p>Plaintiffs in error were convicted of robbery and assault.</p> <p> On Application for Supersedeas. </p> <p> Error to the District Court of Arapahoe County, Hon. Samuel W. Johnson, Judge. </p>

<p>Proceeding under the workmen’s compensation act. Judgment for claimant.</p> <p> Error to the District Court of the City and County of Denver, Hon. Charles C. Butler, Judge. </p>

<p>Proceeding under the workmen’s compensation act. Judgment for claimant.</p> <p> Error to the District Court of the City and County of Denver, Hon. Charles C. Butler, Judge. </p>

<p>1. Trial — Directed Verdict. If under the evidence but one verdict could be returned, a directed verdict is proper; but if from the evidence' different men might reach different conclusions, the issue should be submitted to the jury.</p> <p>2. Motion for Directed Verdict. A motion for a directed verdict admits the truth of all the evidence of the opposing party, and all legitimate inferences therefrom.</p> <p>3. Contract — Rescission. Voluntary execution of a contract, or the procurement of extension of time on deferred payments after discovery of fraud or breach of warranty, waives rescission.</p>

<p>3. Judgement — Motion to Set Aside. A defendant who moves to set aside a default judgment after the close of the term must bring himself within the terms of section 75 Mills’ Code.</p> <p>2. Motion to Set Aside Judgment — Discretion. Whether a judgment shall be set aside, is within the discretion of the court, and the only question to be determined on review is whether that discretion was abused.</p>

<p>1. Bailment — Loss of Property by Theft. A bailee is not liable for the loss of bailed property through robbery, burglary or theft, where there is no negligence on his part.</p> <p>The contention of plaintiff that bailee contracted to redeliver the articles at a date prior to the loss by theft, held not supported by the evidence.</p>

<p>Application for writ of certiorari in a case involving a violation of the prohibition act. Application denied.</p> <p> Error to the District Court of Montrose County, Hon. Thomas J. Black, Judge. </p>

Action to recover the value of railway baggage alleged to have been wrongfully delivered. Judgment of dismissal. Error to the County Court of the City and County of Denver, Hon. E. J. Ingram, Judge.

<p>Action against a street railway company for personal injuries. Judgment for defendant.</p> <p> Error to the District Court of El Paso County, Hon. J. E. Little, Judge. </p>

Action for damages growing out of personal injuries sustained by an employe of a railroad company. Judgment for defendant. Error to the District Court of the City and County of Denver, Hon. Julian H. Moore, Judge.

Action for damages because of the alleged failure of warranty of the variety of seed potatoes. Judgment for defendant. Error to the District Court of Conejos County, Hon. Jesse C. Wiley, Judge.

<p>1. Drainage — Contract. In an action to restrain the laying of a tile drain under contract between the interested parties, a decree which appears to do justice, and does not in any respect violate the terms of the contract, will not be disturbed on review.</p>

<p>Proceeding under the workmen’s compensation act. Judgment for claimant.</p> <p> Error to the District Court of the City and County of Denver, Hon. Julian H. Moore, Judge. </p>

<p>Action for injunction to prohibit defendant from interfering with an aerial tramway. Judgment of dismissal.</p> <p> On Application for Supersedeas. </p> <p> Error to the District Court of San Juan County, Hon. W. N. Searcy, Judge. </p>

Plaintiff in error was convicted of unlawfully keeping intoxicating liquor for sale or gift. On Application for Supersedeas. Error to the District Court of Adams County, Hon. S. W. Johnson, Judge.

<p>Action under the workmen’s compensation act. Claim denied.</p> <p> Error to the District Court of the City and County of Denver, Hon. Clarence J. Morley, Judge. </p>

<p>1. Public Interest — Coal Mining. The business of coal mining is “affected with a public interest”, as that phrase is used in section 30, chapter 180, S. L. 1915, concerning lockouts and strikes.</p> <p>2. Constitutional Law — Legislative Enactment. The contention that chapter 180, S. L. 19^5, relating to the industrial commission, was not regularly passed because the purpose of the bill was changed during its course through the two houses, considered and overruled.</p> <p>3. Strikes and Lookouts — Legislation—Constitutionality. Section 33, chapter 180, S. L. 1915, forbidding incitement to lockout or strike, is not in violation of the provision of the state constitution concerning freedom of speech.</p>

Action to recover value of ore from a mine in which plaintiff had an interest. Judgment for plaintiff. Error to the District Court of the City and County of Denver, Hon. Francis E. Bouck, Judge.

<p>Action to quiet title to water right. Findings and decree for defendants.</p> <p> Error to the District Court of the City and County of Denver, Hon. Julian H. Moore, Judge. </p>

<p>1. Pleading — Replevin—Complaint. Complaint in replevin action reviewed and held to contain the required allegations of special ownership and right of possession in plaintiff, and possession of defendant. ,</p> <p>2. Automobile — Sale of Used Car — Statute. In a transaction involving the sale of a used automobile, the fact that the parties failed to comply with the provisions of section 7, chapter 7, S. L. 1919, extraordinary session, regarding the sale of used cars, does not render the transaction void.</p> <p>3. Chattel Mortgage — Description of Property. In an action in replevin by one claiming the property under a chattel mortgage, defendant cannot question the sufficiency of the description in the mortgage where he has actual notice that it is the identical property upon which he claims a lien.</p> <p>4. Alteration of Description. One cannot contest the validity of a mortgage on the ground that the description of the property has been altered when he has actual knowledge of the specific property claimed thereunder.</p> <p>5. Failure to Take Possession. Where one having actual knowledge of an existing mortgage lien, takes and retains possession of the property under an inferior lien, he cannot defeat a replevin action by the mortgagee, on the ground that the latter did not take possession of the property within the statutory time.</p>

<p>Action on fire insurance policy. Judgment for plaintiff.</p> <p> Error to the District Court of the City and County of Denver, Hon. Charles C. Butler, Judge. </p>

<p>1. Boundaries — Courses and Distances — Monuments. Courses and distances must yield to monuments set in the original survey, and ■when such monuments are found, they establish the boundaries.</p> <p>2. Appeal and Error — Findings. Where findings of the trial court are without support in the evidence, they may be disregarded on review and a judgment directed according to the undisputed facts.</p>

<p>1. Elections — Registration—Presumption. The presumption is that election officials have properly discharged their duties and that names appearing upon the registration list are lawfully there. This presumption obtains until the contrary is shown.</p> <p>2. Statutes — Construction. Election statutes are to be tested like other statutes, but with a leaning to liberality in view of the great public purposes which they accomplish. When technical rules and strict construction would tend to defeat the will of the people, and change the result of an election, they should not be applied.</p>

<p>1. Liens — Agistors—Statutory construction. Section 4013, R. S., 1908, relating to agistors’ liens, is in derogation of the common law and must he strictly construed.</p> <p>2. , Agistor’s lien. Exclusive possession is essential to support lien, which does not exist in favor of one who is a mere hired servant.</p> <p>3. Appeal and Error — Conflicting Testimony. Where the testimony is conflicting, the judgment will not be reversed for insufficient evidence.</p> <p>4. Evidence — Conclusions—Leading Questions. Testimony which consists merely of conclusions of the witness, and affirmative answers to leading questions propounded on redirect examination, is not evidence, is entitled to no weight against witnesses’ contrary statements, and will not support a finding.</p>

<p>Plaintiff in error was convicted of an attempt to rob a mail car.</p> <p> On Application for Supersedeas. </p> <p> Error to the District Court of the City and County of Denver, Hon. Francis E. Bouck, Judge. </p>

Action for damages for injuries suffered by reason of unskillful treatment and improper administration of drugs. Judgment for plaintiff. Error to the District Court of the City and County of Denver, Hon. J. W. Sheafor, Judge.

<p>Action against sureties on a contract. Judgment for defendants.</p> <p> Error to the District Court of Larimer County, Hon. George H. Bradfield, Judge. </p>

<p>1. Brokers — Real Estate — Commission. If the transaction which a broker is authorized to consummate is the direct and proximate result of his efforts, he is entitled to a commission, even though he had no personal intercourse with the purchaser.</p> <p>2. Real Estate — Commission. If a real estate broker has brought the parties together and as a result they conclude a contract,, he is not deprived of his right to a commission by the fact that the contract differs from the one he was authorized to negotiate. And it is immaterial to .the result whether the principal finally sells at a lesser price or sells a smaller amount of the property, other circumstances being such as to entitle the agent to his commission.</p>

<p>1. Telad — Nonsuit. It is error to grant a nonsuit where there is sufficient evidence to entitle plaintiff to have the same passed on by the jury.</p> <p>2, Evidence — Statement of Account. The retention of a full statement of account by a defendant without objection thereto, may he considered an admission against interest.</p>

<p>1. Appeals — Justice to County Court — Time. When the last day of the time fixed by statute for docketing a case on appeal falls on Sunday, the necessary steps may be taken the following day.</p>

<p>Action in damages. Judgment for plaintiff.</p> <p> On Application for Supersedeas. </p> <p> Error to the District Court of the City and County of Denver, Hon. Charles C. Butler, Judge. </p>

<p>1. Divorce and Alimony — Alimony—Death of Husband'. Where there is an absence of any agreement between divorced parties to that effect, and. the decree not showing the court intended to bind the husband’s heirs after his decease, the alimony does not survive the former husband’s death.</p>

Action for death of plaintiff’s daughter occasioned by alleged negligence of defendants’ servant. Judgment for plaintiff. Error to the District Court of the City and County of Denver, Hon. Clarence J. Morley, Judge.

<p>1. Bills and Notes — Drafts—Ownership. Where one deposits a draft unconditionally with a bank, receives credit therefor and checks out the amount in the regular course of business, the bank becomes the owner of the fund which is not subject to attachment in a suit against the depositor.</p>

<p>1. Bills and Noils — Drafts—Ownership. Judgment reversed on authority of Union National Bank v. Maines-Hough Motor Co., 70 Colo. 132 and Manatee County State Bank v. Bruen-Fisher Fruit Co., 70 Colo. 342.</p>

<p>Action to quiet title to water right. Judgment for plaintiff.</p> <p> Error to the District Court of the City and County of Denver, Hon. Clarence J. Morley, Judge. </p>

<p>1. Watee Rights — Abandonment—Evidence. Evidence in a water right abandonment case reviewed and held to justify the conclusion of abandonment.</p> <p>2. Abandonment — Evidence. Evidence of abandonment must be of facts which occur after the entry of the adjudication decree; but previous conditions, declarations of the parties and the adjudication proceedings resulting in the decree are competent to show subsequent conditions and intent.</p> <p>3. Actions — Water Abandonment — Change of Diversion. The issue of abandonment may not be litigated in an action to change the point of diversion of water.</p> <p>4. Limitations — Water Rights — Abandonment. Section 3318 and sections 3313-3314, R. S. 1908, concerning limitations in irrigation matters, limit only the power to question original adjudication decrees of the right and measure of diversion. They have no application to suits for abandonment.</p> <p>5. Estoppel — Knowledge Essential. Knowledge of conditions is an essential factor of estoppel, and if not established the estoppel fails.</p> <p>6. Laches — Time. Delay for a shorter time than the statute of limitations is seldom regarded as sufficient to impute laches, unless opponents have been placed in a worse condition.</p>

Action to cancel certificate of sale under trust deed, and to enjoin the issuance of a trustee’s deed. Judgment for defendants. Error to the District Court of Alamosa County, Hon. Jesse C. Wiley, Judge.

<p>Action for malicious prosecution. Judgment for plaintiff.</p> <p> On Application for Supersedeas. </p> <p> Error to the District Court of the City and County of Denver, Hon. Neil F. Graham, Judge. </p>

<p>1. Criminal Law — Intoxicating Liquor — Evidence. On the trial of one accused of violating the prohibition act, it is proper to permit a qualified witness to testify that he had smelt and tasted the liquor which the accused sold, and to state what it is. This is not expert testimony; and it is for the trial court to decide as to the qualifications of the witness.</p> <p>2. Intoxicating Liquor — Autoptic Evidence. In a prosecution under the prohibition act, it is proper to permit the jury to look at, and smell the liquor alleged to be intoxicating, for the purpose of determining its character.</p>

<p>1. Vendob and Vendee — Contract—Secret Lien. Contracts for the sale of personalty, reserving a secret lien to the vendor, possession being given the purchaser, will not be recognized as leaving title in the vendor as against interested parties without notice.</p> <p>2. Contbacts — Public Policy — Comity. A contract for the sale of an automobile providing that until the balance of the purchase price is paid the vendor should retain title, though valid in the foreign state where executed, cannot be enforced against interested parties without notice in Colorado, because such action would be contrary to public policy, and result in detriment to the. interests of a citizen of this state.</p> <p>Both these grounds furnish exceptions to the general rule of comity as applied to the enforcement of contracts..</p>

<p>Action to quiet title to water rights. Judgment for defendant.</p> <p> Error to the District Court of Chaffee County, Hon. James L. Cooper, Judge. </p>

<p>1. Judgment — On the Pleadings. In considering a motion for judgment on the pleadings, the allegations of the opposite party must be taken as true, and though defective in form if they are sufficient to sustain a judgment in his favor, the motion should not be granted.</p> <p>A motion for judgment on the pleadings cannot be entertained where a material issue of fact is tendered.</p> <p>2. Specific Performance — Olear Title. Specific performance of a contract for the purchase of land will not be decreed where the vendor cannot show a clear title.</p> <p>3. Defense. Defendant may raise the question of defective title in an action for specific performance involving a partial payment, the same as if the entire purchase price or last installment was due. All he is bound to show, to defeat the bill, is that the title, which the vendor is prepared to tender, him is doubtful in character.</p>

<p>Suit on bond. Judgment for plaintiff.</p> <p> Error to the District Court of the City and County of Denver, Hon. Charles C. Butler, Judge. </p>

<p>Original proceedings in disbarment. Demurrer sustained and rule to show cause dismissed.</p>

<p>Will contest. Judgment for contestant.</p> <p> On Application for Supersedeas. </p> <p> Error to the County Court of Boulder County, Hon. E. J. Ingram, Judge. </p>

<p>1. Workmen’s Compensation — Review. In reviewing a judgment involving the workmen’s compensation law, the supreme court may consider only: the legal question of whether there is evidence to support the findings, and not whether the commission has misconstrued its probative effect. The award is conclusive upon all matters of fact properly in dispute before the commission, where supported by evidence, or. reasonable inference to be drawn therefrom.</p> <p>2. Accident Arising Out of the Employment — Lightning. Ordinarily the employer cannot be held liable for compensation for disability 1'rom lightning. But where the work and method of doing it expostes the employe to the forces of nature to a greater extent than he would be if not so engaged, the industry increases the danger from such forces, and the employer is liable.</p>

<p>1. Judges — Jurisdiction While Out of District — "Writs. There is nothing either in the Colorado code or statutes, which permits a district judge, sitting in chambers in one district, to issue writs or orders affecting litigation pending in other districts.</p>

<p>Proceeding under the workmen’s compensation act. Judgment for claimants.</p> <p> Error to the District Court of the City and County of Denver, Hon. Charles C. Butler, Judge. </p>

<p>Action on promissory note. Judgment for plaintiff.</p> <p> On Application for Supersedeas. </p> <p> Error to the District Court of the City and County of Denver, Hon. Clarence J. Morley, Judge. </p>

<p>Petition for writ of habeas corpus. Demurrer to return overruled and petition dismissed.</p> <p> Error to the District Court of Jefferson County, Hon. Samuel W. Johnson, Judge. </p>

<p>1. Instructions — Non-Direction. Mere non-direction is not available error in tbe absence of requests for instructions.</p> <p>2. Appeal and Error — Instructions—Objections arid Exceptions. The appellate court will not review alleged errors based on instructions, which the trial court was not given an opportunity to correct.</p>

<p>Action by real estate broker for commission. Judgment for plaintiff.</p> <p> On Application for Supersedeas. </p> <p> Error to the District Court of El Paso County, Hon. Arthur Cornforth, Judge. </p>

Action for damages to an automobile in a railroad crossing accident. Judgment for plaintiff. On Application for Supersedeas. Error to the District Court of the City and County of Denver, Hon. Clarence J. Morley, Judge.

<p>1. Pleading — Defenses—Estoppel—Statutes. Allegations of an answer, pleading estoppel and a statute of a foreign state, reviewed and held insufficient to constitute defenses.</p> <p>2. Personal Property — -Sale—Pledge. Authority to sell personal property, does not confer the right to pledge it.</p> <p>3. Memorandum of Sale — Construed. A memorandum of sale giving one the right “to sell. as his,” -certain property, cannot be construed as conferring authority to deal with the goods as an owner.</p> <p>4. Possession. The bare possession of goods does not clothe a person with power to dispose of them as the owner.</p> <p>5. ' Vendor and Vendee — Title.' The vendee of personal property . takes it with the risk that his vendor may not have title.</p> <p>6. Evidence — Admissibility. It is error to admit testimony over objection, which does not tend to prove, or has no bearing on the issue.</p> <p>7. Instructions — Burden of .Proof. In an action for conversion of personal property, where the answer admitted title in the plaintiff in the first instance, it was error for the court to instruct the jui’y. that the burden was upon plaintiff to establish by a fair preponderance of the evidence, that the pledgor, from whom defendant secured the property, was without authority to pledge it.</p>

<p>1. Words and Phrases — Snowy Range. The “snowy range” is the continental divide.</p> <p>2. Boundaries — Oall Points. A call for point of beginning cannot be disregarded unless undeterminable or manifestly wrong.</p> <p>A call must not be disregarded unless to do so is unavoidable, and if any be disregarded, that one must be accepted which seems most reasonable and certain.</p> <p>If the point of beginning, or any other call is ascertained, the course will be extended or changed to meet the call.</p>

<p>Action in ejectment. Judgment for plaintiffs.</p> <p> Error to the District Court of Adams County, Hon. Samuel W. Johnson, Judge. </p>

<p>1. Bills and Notes — Promissory Note — Guarantor. A contract of guaranty requires adequate consideration. It is not presumed, but must be established by evidence as in case of any other contract.</p> <p>2. Promissory Note — Guaranty—Intent. The intent of a guarantor of a promissory note to be liable to the payee, where indorsement is made after delivery of the note, must be shown by a preponderance of the evidence.</p> <p>3. Contract — Third Party. A third party is entitled to recover a benefit secured to him by a contract only on condition that the consideration, upon which the right is claimed, was furnished by the contracting party with intent that it secure such benefit. An incidental benefit is not sufficient.</p> <p>4. Bills and Notes — Accommodation Indorsement. Where one indorses a note as an accommodation, and the payee is the accommodated party, he has no right of action against the endorser.</p> <p>5. Banks and Banking- — Guaranty of Assets hy Cashier. The cashier of a bank, in order to maintain its capital and satisfy the bank examiner, guaranteed by indorsement, a note listed in the bank’s assets. Held, that as between the bank and indorser, there was no consideration for the guaranty, and no action could be maintained against him for the amount of the note.</p>

<p>1. Contract — By Correspondence. A contract may result from a series of letters. It is not important that all the terms of the agreement be set out in one instrument. If from the correspondence, the intent of the parties to contract may be clearly inferred, it is sufficient.</p>

<p>1. Schools — District Organization Not to be Questioned After One Year. Under the provisions of section 5917, R. S. 1908, the legality of a school district organization cannot be questioned after it has continued to exercise its franchises and privileges for one year next succeeding the election of its officers.</p>

<p>1. Limitations — Action for Damage by Seepage. In a claim for damages to, land occasioned by seepage from a reservoir, the cause of action accrues at the time the land is first visibly affected by the seepage.</p> <p>2. Appeal and Brbob — Findings of Trial Court. A proper finding of the trial court which is sustained by competent evidence will not be disturbed on review.</p>

Action for dissolution of partnership and accounting. Finding that the partnership had been dissolved, and judgment for defendant. Error to the District Court of the City and County of Denver, Hon. Henry J. Hersey, Judge.

Action in behalf of the people to recover the amount alleged to be due as a tax upon gasoline sold for power purposes. Judgment for plaintiff. Error to the District Court of the City and County of Denver, Hon. Charles C. Butler, Judge.

<p>1. Negotiable Instruments — Promissory Note — Notice of Infirmity. To constitute notice of an infirmity in a promissory note, the person to whom it is negotiated must have actual knowledge of the infirmity or defect, or knowledge of such facts, that his action in taking the instrument amounted to bad faith,</p> <p>2. Pleading — Beal Party in Interest. The defense that a plaintiff is not the real party in interest, must be specially pleaded.</p> <p>3. Appeal and Error — Party in Interest — Objection. Objection first made in the appellate court, that a special defense has not been pleaded, will not be entertained, where evidence in support of the defense was received on the trial without objection.</p> <p>4. Findings of Fact. Findings of fact by the trial court on conflicting evidence will not be disturbed on review.</p>

<p>Plaintiff in error was convicted of unlawfully disposing of mortgaged property.</p> <p> On Application for Supersedeas. </p> <p> Error to the District Court of Adams County, Hon. Samuel W. Johnson, Judge. </p>

<p>Motion to re-tax costs. Items re-taxed.</p>

<p>On motion to re-tax costs. Items re-taxed.</p>

<p>1. Appeal and Error. — Abstracts. This court will consider only those matters set out in the abstract.</p>

<p>1. Appeal and Eeeor — Findings. Findings of the trial court supported by ample competent testimony will not be disturbed on review.</p>

<p>Action in damages for breach of contract for sale of real property. Judgment for defendants.</p> <p> Error to the District Court of Kit Carson County, Hon. Arthur Cornforth, Judge. </p>

<p>1. Municipal Corporations — Defective Sidewalk — Notice. Under section 6661, R. S. 1908, requiring notice to. a town or city of the place of occurrence of an injury attributed to its negligence, a notice which locates the place of injury “on the north side of East Carr Avenue, 'between First and Second streets in your city,” held sufficiently specific.</p> <p>2. ' Variance — Pleading and Proof. In an action against a city for personal injuries occasioned by a defective sidewalls:, proof of the place of accident corresponded exactly with the alleged location except as to a mentioned house number.' Held that this variance was immaterial.</p>

<p>Action to enjoin diversion of water from a natural stream. Judgment for plaintiffs.</p> <p> Error to the District Court of Las Animas County, Hon. A. C. McChesney, Judge. </p>

<p>Action for divorce. Judgment for defendant.</p> <p> Error to the District Court of Las Animas County, Hon. A. F. Hollenbeck, Judge. </p>

<p>Action on promissory note. Judgment for defendant.</p> <p> Error to the County Court of Rio Grande County, Hon. James W. White, Judge. </p>

<p>1. Pijsadings — Judgment on. Where a material issue of fact is raised, it is error to grant a motion for judgment on the pleadings.</p>

Action in quo warranto, involving the office of public trustee of Pueblo County. Judgment for plaintiff. Error to the District Court of the City and County of Denver, Hon. Charles C. Butler, Judge.

<p>Petition for Writ of Prohibition. Original proceeding.</p>

<p>On motion to dismiss writ of error.</p>

Action for cancellation of deed and to compel reconveyance of real property. Judgment for plaintiff. On Application for Supersedeas. Error to the District Court of Weld County, Hon. Henry J. Hersey, Judge.

Petition for writ of mandamus to compel a city clerk to refer a municipal ordinance to the electors for approval or rejection. Petition denied. ■ Error to the District Court of Boulder County, Hon. Neil F. Graham, Judge.

<p>1. Taxes and Taxation — City Property Exempt. All property, real and personal, of Colorado cities, is exempt from taxation.</p>

<p>Action to set aside judgment. Judgment for plaintiff.</p> <p> Error to the District Court of Pueblo County, Hon. James A. Park, Judge. </p>

Action for cancellation of a contract for purchase and sale of real property and ouster. Judgment for plaintiff. Error to the District Court of the City and County of Denver, Hon. Greeley W. Whitford, Judge.

Action to compel purchasers of real property to convey it to plaintiff on the theory that they were his agents. Judgment for plaintiff. Error to the District Court of Delta County, Hon. Thomas J. Black, Judge.

Action to recover the value of work and labor performed. Judgment for plaintiff. On Application for Supersedeas. Error to the County Court of the City and County of Denver, Hon. George W. Dunn, Judge.

Action to recover for electric service and power. Judgment for defendant. On Application for Supersedeas. Error to the District Court' of the City and County of Denver, Hon. Henry J. Herscy, Judge.

Action to have a tax assessment on livestock declared void and to restrain a sale of the property for taxes. Demurrer to complaint sustained. Error to the District Court of Gunnison County, Hon. Thomas J. Black, Judge.

Action on contract for the payment of money. Motion for change of venue denied. Petition of relators for writ of prohibition denied. Original Proceeding.

Habeas corpus proceedings by relator to obtain the custody of her infant son. Judgment for respondent. Error to the District Court of Garfield County, Hon. John T. Shumate, Judge.

Action by judgment creditor to set aside alleged fraudulent conveyance of real property from husband to wife. Judgment for plaintiff. Error to the District Court of Arapahoe County, Hon. Samuel W. Johnson, Judge.

Action against a ditch company for damages alleged to have been occasioned by the overflow of its ditch on the premises of plaintiff. Judgment for plaintiff. Error to the District Court of Conejos County, Hon. Jesse C. Wiley, Judge.

<p>Action on promissory note. Judgment for plaintiff.</p> <p> Error to the District Court of the City and County of Denver, Hon. Charles C. Butler, Judge. </p>

<p>Plaintiff in error was convicted of uttering a forgery.</p> <p> Error to the District Court of Saguache County, Hon. Jesse C. Wiley, Judge. </p>

<p>1. Intoxicating Liquoks — Manufacture—Possession—Constitutional Law. Manufacturing and having in one’s home intoxicating liquor for personal use, is a violation of the provisions of chapter 141, S. L. 1919, concerning intoxicating liquors, and the law is not unconstitutional as being in violation of the fourteenth amendment.</p>

<p>1. Divobce and Alimony — Custody of Children — Modification of Decree. In a divorce proceeding, the court retains jurisdiction over the custody of the minor children after rendition of the decree, and the petitioner for a modification of the decree as to the custody of such children, may set up in the petition, and rely upon, any changes in circumstances or facts arising since the original decree.</p>

<p>Proceedings to enjoin the construction of a county road. Judgment for defendant.</p> <p> Error to the District Court of Chaffee County, Hon. James L. Cooper, Judge. </p>

Action to restrain a municipal corporation from selling sewage water to its co-defendant for irrigation purposes. Judgment for defendants. Error to the District Court of Las Animas County, Hon. A. C. McChesney, Judge.

<p>Action to quiet title to stock in an irrigation corporation. Judgment for defendant. \</p> <p> Error to the District Court of Larimer County, Hon. Neil F. Graham, Judge. </p>

<p>1. Tenancy — Tenants in Common — Taxes. While as a general rule one of two tenants in common may not acquire by tax purchase the interest of his fellow, the rule does not apply to a purchaser who procures a tax deed by virtue of a sale for taxes which should have been paid by his co-tenant alone.</p> <p>2. Actions — To Quiet Title — Possession. An action to quiet title to land will lie, the plaintiff having title but not actual possession, if the land is unoccupied.</p> <p>3. A ppm at. and Error — Objections—Assignments of Error. Objections not specified in the record nor in the assignments of error, will not be considered ■ on review.</p>

Action against the vendor of real estate to recover the amount of taxes paid by purchaser. Judgment for plaintiff. Error to the District Court of Kit Carson County, Hon. Arthur Cornforth, Judge.

<p>1. Appeal and Error — Abstract. Error assigned on the insufficiency of evidence to support the verdict, cannot be considered where the abstract purports to contain but a part of the evidence.</p> <p>2. Judgment — Presumption. Where only a- part of the evidence is contained in the abstract, it will be presumed that the portion omitted* supplied any apparent deficiency.</p> <p>3. Abstract — Instructions—Pleadings. Error based on the ground that the instructions do not correctly state the issues made by the pleadings, will not be considered where the abstract does not purport to give more than the substance of the pleadings.</p> <p>4. Sufficiency of Evidence. A verdict on conflicting and unsatisfactory evidence will not be disturbed, if it does not appear from the record that it is against the evidence.</p>

<p>Proceedings involving the adoption of a minor child. Petition of grandparents granted.</p> <p> Error to the District Court of Pueblo County, Hon. James A. Park, Judge. </p>

<p>1. Attorney and Client — Fees. An attorney and his client entered into a contract for contingent fees for legal services. On completion of the services, the attorney asked for additional compensation on the ground that new matter in the way of counterclaims had necessitated extra work on his part not contemplated by the original agreement. Facts reviewed and held, that the attorney was not entitled to additional compensation.</p> <p>2. Contingent Fee — Contract. Án attorney’s contract for a contingent fee contemplates a defense and all things which might be reasonably expected as an incident thereto.</p>

<p>Action on promissory note. Judgment for plaintiff.</p> <p> Error to the District Court of the City and County of Denver, Hon. Clarence J. Morley, Judge. </p>

<p>Action for goods sold and delivered. Judgment for defendants.</p> <p> Error to the District Court of the City and County of Denver, Hon. Greeley W. Whitford, Judge. </p>

<p>Action by broker for commission on sale of real estate. Judgment for plaintiff.</p> <p> Error to the District Court of 'the City and County of Denver, Hon. Charles C. Butler, Judge. </p>

<p>1. Taxes and Taxation- — Property for Charitable Purposes — Exemption. Whether property alleged to be used for charitable purposes is exempt from taxation must depend upon the use made of the property, rather than upon the charitable character of the owner.</p> <p>2. Words and Phrases — Charity. A charity in tl^e legal sense may be more fully defined as a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influehce of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves in life, or by erecting or maintaining' public buildings or works or otherwise lessening the burdens of government.</p> <p>3. Corporations — Charitable—Taxation. The property of a corporation organized to create a fund by the'payment of monthly dues by its members, employes of a railroad company, which fund is used to secure and maintain a hospital for the benefit of such members, is not used exclusively for strictly charitable purposes, so as to be exempt from taxation under section 5, article 10, of the state Constitution, and section 5545, R. S. 1908.</p>