1. ACTION AGAINST COUNTY-CUMULATIVE REMEDY.-One whose
claim against a county has been presented to and disallowed by the
board of county commissioners, has the right to elect to appeal from
the decision of the board, or bring an independent action. Com. Pit-
kin Co. v. Brown, 473.
2. PRACTICE-CUMULATIVE REMEDY.-One whose claim against a
county has been presented to and disallowed by the board of county
commissioners, may, under the statute (Gen. Stats., secs. 546 and 547),
either appeal to the district court or bring his action at law or in equity.
His right to bring an action is not excluded by his statutory right of
appeal from the decision of the board. Com. Park Co. v. Locke, 508.
3. ACTION, NATURE OF.-An action to foreclose a mechanics' lien is
not, as to its principal basis, a proceeding in rem. Davis v. John Mouat
L. Co., 381.
4. PRACTICE.-A recovery can be had in an action for use and occu-
pation where the defendant holds over after the expiration of his term.
Com. Pitkin Co. v. Brown, 473.
5. PARTIES.-An action on an undertaking in attachment may be
maintained against principal and sureties jointly, without first obtain-
ing judgment against the principal. Mattler v. Brind, 439.
6. PRACTICE UNDER THE "TOWN SITE" ACT.-Pleadings and pro-
ceedings in actions to determine the right to receive a conveyance under
the "Town Site" act are controlled by the chancery practice as modi-
fied by that act, and not by the civil code. Rice v. Goodwin, 267.
7. SAME.- The "Town Site" act is a special statute, and its provis-
ions relating to practice are not repealed by implication by the civil
code, which is general. Ib.
8. ACTION TO QUIET TITLE. -The Civil Code, sec. 255, which provides
for action by one in possession of land by himself or tenant "against
any person who claims an estate therein adverse to him, for the purpose
of determining such adverse claim," does not authorize an action by
one who has conveyed the legal title to the land but retains possession
thereof. Walker v. Pogue, 149.
9. STATUTORY ACTION.-A party injured by fire set out or caused by
the operating of a line of railroad, has an action for his damages, and
is not required to avail himself of the provision of the act of March 31,
1887. Denver T. & G. R. R. Co. v. De Graff, 42.
ADMINISTRATOR: See EXECUTOR AND ADMINISTRATOR.
AGENCY: See PRINCIPAL AND AGENT.
AGREEMENT: See CONTRACTS.
1. ALIENS CANNOT LOCATE MINING CLAIMS. - None but citizens of the
United States and those who have declared their intention to become
such, can acquire any right to public mineral lands by location. Lee
v. Justice Mining Co., 112,
2. ASSIGNMENT OF LOCATION BY ALIEN.-An alien cannot by assign-
ment or conveyance to a citizen transfer any better or greater right than
he himself possesses. Ib.
1. AMENDMENTS. - A complaint may, in furtherance of justice and on
such terms as may be proper, be amended by adding the name of a party
plaintiff. Rawles v. The People, 501.
2. PLEADING-AMENDMENT. -A complaint which fails to allege the
time when the note sued upon is payable may be amended, and unless
such amendment is prejudicial to or prevents defendant from interpos-
ing a proper defense, a continuance of the cause, for the purpose of al-
lowing defendant to amend its answer, will not be granted. The Tribune
P. Co. v. Hamill, 237.
3. SAME. Courts are liberal in allowing amendments when the cause
of action is not changed, and where the complaint fails to state when
the note sued on is payable, but the note is overdue, and the maker
knows it to be the note he will be called upon to defend against, an
amendment whereby the time of payment is inserted does not change
the character of the action. Ib.
4. AFFIDAVIT IN ATTACHMENT-DEFECTIVE. --An affidavit in attach-
ment which fails to state definitely the nature of the demand, is defec-
tive, but not so defective as to render the proceedings thereunder
absolutely void because of the provision of the code permitting the
amendment thereof. Leppel v. Beck, 390.
5. AMENDMENT AFTER APPEAL.-A court has power to vacate a judg-
ment at the term at which it was rendered, and permit the pleadings in
the case to be amended, notwithstanding an appeal from the judgment
has been perfected. Higgins v. The People, 567.
6. DISCRETION. -The allowance of amendments to pleadings rests in
the sound discretion of the court. Ib.
1. APPEAL-JURISDICTION. - The supreme court being without juris-
diction to entertain the appeal, a transfer of the cause to court of ap-
peals will not confer jurisdiction upon the latter. Lowenbruck v. Denver
2. APPEAL-NONE FROM INTERLOCUTORY JUDGMENT. - An interlocu-
tory judgment is not appealable. Hagerman v. Moore, 83.
3. APPEAL DOES NOT LIE, WHEN. -The cause remaining undetermined
in the court below as to the appellee's codefendants, there could be no
final judgment with respect to him which would permit an appeal by
the unsuccessful party prior to the determination of the entire suit.
There can be but one judgment in an action from which an appeal may
be taken. Ib.
4. JURISDICTION. - When the judgment appealed from does not
amount, exclusive of costs, to the sum of one hundred dollars, or relate
to a franchise or freehold, neither the supreme court to which the ap-
peal was taken, nor this court to which it was transferred, has jurisdic-
tion to entertain it. Stevenson v. Clarke, 108.
1. ABSTRACTS.-If the appellant fails to file an abstract of the record
prepared in substantial compliance with the 16th Rule of Court, his ap-
peal may be dismissed. Meyer v. Helland, 209.
2. BILL OF EXCEPTIONS-RECORD.-When a bill of exceptions con-
flicts with the record entries in the case, the former must be taken as
correct and the latter erroneous. Atchison etc. R. R. Co. v. Denver, 436.
3. CONTEMPT PROCEEDINGS-REVIEW OF.-The court upon review
of contempt proceedings will limit its inquiry to the jurisdiction of the
court below. If the facts disclosed by the record are sufficient to con-
stitute a contempt, the court had jurisdiction and its orders will not be
reviewed for mere errors. Reeves v. The People, 196.
4. PRACTICE ON APPEAL.-Assignments of error not argued by coun-
sel in their briefs will not be considered by the court. Perkins v. Pe-
terson, 242.
5. SAME.-An assignment of error cannot be predicated upon an in-
struction, to the giving of which no objection appears to have been
made. Brewster v. Crossland, 446.
6. SAME. A party cannot assign as error an instruction given at his
request. Denver v. Soloman, 534.
7. JUDGMENT CLERICAL MISTAKE. When a judgment appears to
have been entered by a clerical mistake, it will be reversed. Atchison
etc. R. R. Co. v. Denver, 436.
8. PRACTICE.-In the absence of a bill of exceptions containing the
evidence, assignments of error based upon rulings admitting testimony
or as to the effect thereof will not be considered, but the sufficiency of
the complaint may be the subject of inquiry. Colo. Springs. etc. Co. v.
Godding, 1.
9. SAME. One who has been made a party to an action and appeared
without objection will not be heard, on error, to object, for the first
time, that he was not a proper party. Rawles v. The People, 501.
10. OBJECTIONS AND EXCEPTIONS, WHEN NECESSARY.-No objection
to testimony will be considered on appeal when the evidence was ad-
mitted without objection or exception. Edwards v. Harvey, 109.
11. OBJECTIONS-EXCEPTIONS.-Rulings of the court below admit-
ting or excluding evidence will not be considered on appeal, when the
evidence was admitted without objection and no exceptions were saved.
Catlin Land etc. Co. v. Best, 481.
12. ASSIGNMENTS OF ERROR NOT CONSIDERED, WHEN. -Assignments
of error on admission of testimony, where specific objections to its ad-
missibility were not made nor proper exceptions saved, will not be con-
sidered. Farmers & M. Ins. Co. v. Nixon, 265.
13. PRACTICE. -Questions as to misjoinder of parties defendant, not
saved by the record, will not be considered on appeal. Owl Canon Gyp-
sum Co. v. Ferguson, 219.
14. SAME. An objection on the ground of nonjoinder of a party can-
not be raised for the first time in this court. Denver v. Soloman, 534.
15. PRACTICE ON APPEAL. -The objection to a complaint that it is
ambiguous and uncertain cannot be raised for the first time on appeal.
Com. Park Co. v. Locke, 508.
16. PRACTICE IN ATTACHMENT. - Questions as to the sufficiency of an
affidavit in attachment, not raised in the court below, will not be con-
sidered on review. Rice v. Hauptman, 565.
17. SAME.- Defects in an affidavit in attachment must be taken ad-
vantage of in the court below before trial upon the traverse. Ib.
18. WAIVER BY STIPULATION. -Parties stipulating that the trial upon
the traverse in attachment may be had at a day later than the trial upon
the merits, will not be heard to complain of irregularity in the order of
proceeding in this respect. Ib.
19. NEW TRIAL NOT GRANTED, WHEN.-A judgment which is well
supported by testimony will not be disturbed upon the ground that the
finding was against the weight of the evidence. Jones v. Montrose Mer.
Co., 94.
20. VERDICT UPON CONFLICTING EVIDENCE. - The court will not in-
terfere with the verdict when it appears that it was rendered upon con-
flicting testimony, and it does not appear that the evidence was not
fairly considered by the jury. Denver etc. R. R. Co. v. Richards, 87.
21. CONFLICTING TESTIMONY-REVIEW OF.- Where the verdict rests
on conflicting testimony, which would warrant the jury in reaching
their conclusion, the verdict will not be disturbed. Bice v. Hover, 172.
22. VERDICT, WHEN CONCLUSIVE. -The court will not interfere with
the finding of a jury on any question of fact where it is rendered on
conflicting testimony. Owl Canon Gypsum Co. v. Ferguson, 219.
23. PRACTICE.-In cases where the testimony was taken before a ref-
eree and by him certified to the trial court, the appellate court will upon
review examine the evidence and determine for itself the correctness of
the findings of fact. Childs v. Lowenbruck, 92.
24. PROOF WANTING, JUDGMENT REVERSED.-In an action for goods
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