Volume 74 — Colorado Reports

<p>Action to restrain the use of a storage reservoir. Judgment for defendants.</p> <p> Error to the District Court of Jefferson County, Hon. Samuel W. Johnson, Judge. </p>

<p>1. Divobce — Writ of Error. A compliance witb section 5605, C. D. '23, relating to writs of error, ‘ is necessary in order that an aggrieved party may bave a writ of .error from tbe Supreme Court to review any judgment, order, or decree in a divorce action.</p> <p>2. Appeal and Ebeob — Court Discretion. Granting or refusing an application under section 81 of tbe Code, is discretionary witb tbe trial court, and not reviewable except in case of a gross abuse of that discretion.</p>

<p>1. Venue — Contract. In an action on contract, no place of performance being expressly specified, the action should be tried in the county where defendant resides unless the case is brought within some of the exceptions of the statute.</p> <p>2. Peohibition — Venue. In an action on contract, it appearing that defendant was entitled to have the case tried in the county of his residence, prohibition is allowed against the trial in another county?</p>

<p>Garnishment proceedings under attachment. Garnishee discharged.</p> <p> On Application for Supersedeas. </p> <p> Error to the County Court of the City and County of Denver, Hon. Jay H. Bouton, Judge. </p>

<p>Action for damages occasioned by an automobile accident. Judgment for defendant.</p> <p> On Application for Supersedeas. </p> <p> Error to the District Court of Routt County, Hon. Gilbert A. Walker, Judge. </p>

<p>1. Appeal and Error — Questions not Raised Below. Questions not raised in the trial court will not be considered on review.</p> <p>2. Actions — Parties—Copartners. Where two individuals jointly promise to pay the indebtedness of another, if they are liable, the question of whether or not they are partners, is immaterial.</p> <p>3. Trial — Jury Questions. The jury is the judge of the probative effect of the evidence, and the credibility of witnesses, who testify on the trial.</p> <p>4. Appeal and Error — Fact Findings. Findings of a jury based on conflicting evidence, and which are approved by the trial court,' will not be disturbed on review.</p> <p>5. Instructions. Requested instructions are properly refused where they are altogether improper, relate to fanciful issues, are not responsive to the evidence, or are sufficiently covered by the instructions of the court.</p> <p>6. Variance — Pleading and Proof. Record reviewed, and the contention that there was a departure or variance in pleading and proof, held unwarranted.</p>

Action to cancel contract, and recover notes sent defendant for collection. Judgment of dismissal. Error to the District Court of the City and County of Denver, Hon. Samuel W. Johnson, Judge.

<p>Action on contract. Judgment for plaintiff.</p> <p> Error to the District Court of the City and County of Denver, Hon. Samuel W. Johnson, Judge. </p>

<p>1. Actions — Attachment. Au attachment is rightly dissolved if the action is ex delicto.</p> <p>2. Character of — Pleading. Whether an action is ex contractu or ex delicto must be determined from the complaint.</p> <p>3. Ex delicto — Attachment. Allegations of a complaint reviewed, the action held to be ex delicto, and an attachment rightly dissolved.</p> <p>4. Pleading — Contract. Neither exemplary damages nor execution against the body, is consistent with an action upon contract. 4</p>

<p>Action for money had and received. Judgment for plaintiff.</p> <p> Error to the District Court of Cheyenne County, Hon. Arthur Cornforth, Judge. </p>

<p>1. Appeal and Error — Harmless Error. Rulings on the admission of evidence which are clearly without prejudice to the complaining party, will not be considered on review.</p> <p>2. Executors and Administrators — Compensation. The allowance of compensation to an executor for services rendered the estate, rests in the sound discretion of the court, whose judgment will not be disturbed in the absence of a showing of abuse of discretion.</p> <p>3. Compensation — Division Between Executors. No rule of law declares that corepresentatives — without regard to the services rendered by each — are entitled to an equal share of the statutory fees. It is the duty of the court to divide the total compensation between them as nearly as possible according to the services rendered.</p> <p>4. Attorney and Client — Executors. An executor, who is a lawyer, cannot employ himself in that capacity and thus obtain additional fees.</p> <p>5. Executors and Administrators — Compensation. In fixing the compensation to be allowed the executor of an estate for services rendered, the question is what service was rendered? The fact that he is recognized as a member of some profession is immaterial, but whatever skill and learning in any department of human activity he possessed of which the estate was in need and of which it secured the benefit, is a.proper element to be considered.</p> <p>6. Appeal and Error — Executors—Division of Compensation. The apportionment of compensation, by the trial court, between eorepresentatives of an estate, not disturbed on review.</p>

<p>Action for damages and injunction. Judgment for defendant.</p> <p> On Application for Supersedeas. </p> <p> Error to the District Court of Larimer County, Hon. Charles E. Herrick, Judge. </p>

Action for rent, and damages for violation of the terms of a lease. Judgment for plaintiffs. Error to the District Court of the City and County of Denver, Hon. Julian H. Moore, Judge.

<p>1. Executors and Administrators — Claims—Renewal Notes. Renewal notes given by the administratrix of an estate for a debt existing at the time of the death of the decedent, do not change the character of the original' indebtedness, a claim for which not being presented within the time prescribed, is barred by the statute.</p> <p>2. Final Orders. Orders for the renewal of notes by the administratrix of an estate, are not final judgments in the sense that they are not subject to modification or vacation by the court before the close of administration.</p> <p>3. ' Reneioal Notes — Effect. Renewal notes given by an administratrix for an indebtedness existing before the death of the intestate, do not create an indebtedness against the estate.</p> <p>4. Statute of Nonclaims — Waiver. An administratrix cannot waive the statute of nonclaims, nor' can the court toll the statute by authorizing the renewal of an outlawed original debt.</p> <p>5. Bills and Notes — Renewals. Where a note is given merely in • renewal of another, and not in payment, the renewal does not extinguish or change the original debt, and as a general rule the holder is entitled to the same rights and remedies as if proceeding on the original note.</p> <p>Whether or not the new note extinguishes the original debt depends upon the circumstances and the intent of the parties.</p> <p>6. Executors and Administrators — Renewal Notes — Mortgage. The holder of a renewal note given by an administratrix for a debt against the estate, which is barred by the statute of nonclaims, is not entitled to a foreclosure of a chattel mortgage securing the same.</p> <p>7. Chattel Mortgage — Foreclosure. Section 5344, C. L. ’21, concerning foreclosure - of mortgages against estates, held con- • elusive against the foreclosure of a chattel mortgage given by an administratrix to secure renewal notes for an indebtedness barred by the statute of nonclaims.</p> <p>8. Chattel Mortgages — Administrators. The unauthorized giving of a chattel mortgage by an administrator, confers no right of property on the mortgagee.</p> <p>9. Appeal and Error — Parties•—■Harmless Error. In the hearing of a claim against the estate of a deceased person, interested parties and creditors should be brought in; but error in this respect is harmless where the rights of the absent parties are not affected by the judgment.</p>

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

<p>Action for divorce. Judgment for plaintiff.</p> <p> On Application for Supersedeas. </p> <p> Error to the County Court of Garfield County, Hon. J. W. Bell, Judge. </p>