ACCIDENT INSURANCE: See INSURANCE-LIFE.
NEW AGREEMENT.-A new agreement or promise may be held to be
an accord and satisfaction of a prior agreement, but in order that a new
agreement or promise, before performance, may be pleaded in bar of an
action on the old agreement, it must clearly appear that the new agree-
ment or promise was expressly accepted as a satisfaction. Heath v.
Vaughn, 384.
NEGLIGENCE - DEATH OF WRONGDOER - SURVIVAL OF ACTION.
Where a party sustains personal injuries through the negligence of an-
other, and the wrongdoer is killed by the same act of negligence, the
injured party has no right of action against the estate of the deceased
wrongdoer. Letson v. Brown, 11.
STATUTORY CONSTRUCTION-PLEADING ESTATES OF DECEDENTS-
REAL ESTATE. -Sec. 4691, Mills' Ann. Stat. which authorizes and makes
it the duty of administrators and executors to receive, take possession
of and sue for and recover rents, issues and profits of the real estate of
the decedent, does not authorize the administrator to take possession
of lands or tenements, nor to execute or terminate a lease, nor to sue for
the ouster of a tenant, unless it be for default in the payment of rent or
other condition of the lease, and in such case it would be necessary for
him to allege in his complaint the facts required to show his authority
to institute and maintain the suit and the default of the tenant. Rupp
v. Rupp, 36.
PUBLIC WORKS-ACTION ON BOND-MISJOINDER. Where a contractor
to build a state reservoir entered into bond running to the people of
the state of Colorado, conditioned to perform his agreement according
to its terms, to the satisfaction of certain designated state officers, and
to discharge, pay and satisfy all just claims and demands and all ex-
penses incurred in the construction and completion of the reservoir, an
action may be maintained on such bond in the name of the people of
the state of Colorado, and directed by the chief executive, and conducted
by the attorney general, to enforce the payment of claims for material
furnished by private parties to the contractor and used in the construc-
tion of the reservoir. And the fact that the suit was brought to enforce
the payment of two different claims due to two different parties did not
constitute a misjoinder of causes of action. The People, Use C. F. & I.
Co. v. Dodge et al., 177.
ACTION TO RECOVER PERSONAL PROPERTY - ALTERNATIVE JUDG-
MENT. In an action by a pledgor to recover from the pledgee mining
stock that had been pledged to secure a loan, or its value, the defend-
ant cannot complain that the judgment was only for the return of the
stock instead of being in the alternative for the return or for its value.
Colburn v. Riley, 184.
SAME. In an action for the recovery of mining stock or its value,
where the answer of defendant disclosed that he was in possession of
the stock and that it could be returned, an alternative provision in the
judgment for the value of the stock in case it could not be returned was
unnecessary. Ib.
PLEDGE-REDEMPTION-EQUITABLE ACTION. -A pledgor may main-
tain an equitable action to redeem a pledge, and in such action the court
may order the pledgee to deliver the pledged property into court within
a certain time, instead of merely giving judgment for possession and leav-
ing the plaintiff to the ordinary processes of the court to enforce the judg-
ment.
ADMINISTRATORS: See ESTATES OF DECEDENTS.
AMENDMENTS: See PLEADING.
APPEALS AND WRITS OF ERROR:
PRACTICE-REVERSAL-NEW TRIAL.-A general judgment of rever-
sal by an appellate court sends the case back for trial, with the same
rights to litigants as though no trial had been had and no judgment
entered. Dickson et al. v. First Nat. Bank of Longmont, 154.
SAME. Where the court of appeals reversed a case because the evi-
dence was insufficient to support the judgment, the case being sent
back to the trial court, it was error for that court to dismiss the case
without giving the parties another trial. The parties were entitled to
another hearing and if their evidence was not strengthened so as to
come within the opinion of the court of appeals, the trial court would
then properly enter a judgment of nonsuit. Ib.
PROBATE MATTERS-FINAL JUDGMENT. - Under sec. 3, Laws, 1891,
page 109, the district court has jurisdiction to review the action of the
county court in probate matters without regard to the finality of such
order or judgment, but no appeal lies from the decision of the district
court to the court of appeals unless the action of the county court ap-
pealed from was a final judgment. Hamilton et al. v. Fowler, 175.
TWO REMEDIES. -A party cannot pursue two remedies at the same
time. A party desiring to have a final judgment of a court reviewed
APPEALS AND WRITS OF ERROR-Continued.
must do so either by appeal or writ of error. He cannot pursue both
methods at the same time. But where a party has commenced an ap-
peal, and by failure to file the record within time has lost his right of
appeal, he is then by abandoning the appeal, entitled to have his case
reviewed upon writ of error. Smith v. Morrill et al., 284.
RIGHT OF APPEAL.-Where in a replevin suit the plaintiff recovered
judgment against the defendant, but it was adjudged that an inter-
venor had a prior lien on the property, an appeal by the plaintiff from
the judgment giving the intervenor a prior lien, did not deprive the de-
fendant of the right to afterwards have the judgment reviewed on writ
of error. Bruce v. Horn, 316.
LIABILITY OF SURETIES. On an appeal from the county court to
the district court, the county court made an order fixing the time within
which the bond should be filed, and directing that it be approved by
the clerk. Within the time a bond was presented to the clerk and filed,
but he declined to enter an order of approval. On the same day the
sureties notified the clerk that they withdrew from the bond, and also
notified the obligee in the bond that they withdrew. Afterwards, and
at the same term of court the county court on motion of the principal
obligee approved the bond nunc pro tunc as of the day of its filing.
Held, that in an action on the bond an answer by the sureties setting
up the foregoing facts and the further fact that the principal obligors
had induced them to sign the bond by representation that before filing
they would secure the signature of a certain other person as surety and
failed to do so, stated no defense to the action, and a demurrer on that
ground should have been sustained. Irwin v. Crook et al., 172.
LIABILITY OF SURETIES.- Upon affirmance of a judgment on appeal
and a failure to pay the judgment the liability of the sureties on the
appeal bond became absolute. The obligee in the bond is not required
to exhaust his remedy against the principal nor to proceed against the
principal at all before having resort to the sureties, and he may bring
his action against the sureties without joining the principal. Stein-
hauer et al. v. Colmar, 494.
CONTINUANCE-DISCRETION OF TRIAL COURT. -The action of a trial
court in refusing an application for continuance is a matter of discretion
with that court, and is reversible only in case of manifest abuse of dis-
cretion. Keegan v. Donnelly, 31.
SAME-ABSENCE OF COUNSEL.-Before an appellate court will hold a
refusal of a continuance on account of absence of counsel as an abuse of
discretion, it must appear that the complaining party was or might have
been prejudiced thereby. Ib.
APPELLATE PRACTICE-Continued.
INSTRUCTIONS-EXCEPTIONS. An objection and exception to instruc-
tions which fail to call the attention of the trial court to the error com
plained of are not available to cause a review of the instructions on appeal.
The D., T. & F. W. R. R. Co. v. The Pulaski Ir. Ditch Co., 41.
FINDINGS OF FACT.-Findings of fact by the trial court will not be
disturbed on appeal where there is evidence to support them, unless
manifestly against the weight of the evidence. Schoyer v. Leif, 49.
EVIDENCE-FINDINGS OF FACT. - Where on all the evidence offered
the trial court concludes that the facts are with the successful party,
the appellate court, except under very exceptional circumstances, will
not disturb the judgment because it is unsupported by the evidence.
Clifford v. Gienger et al., 83.
NONPREJUDICIAL ERROR. - The rejection of evidence that only bears
remotely on the question at issue which is established by direct proof,
if an error, is one which could not affect the result and is not prejudi-
cial. Rarick et al. v. Vandevier, 116.
PRESUMPTIONS. - Where the assignee of an insolvent estate filed his
report which was objected to by the creditors, and was referred to a ref-
eree, and the assignee objected to the report of the referee and appealed
from the judgment entered on the report, neither the deed of assignment
nor the order appointing the referee being contained in the record, the
referee will be presumed to have acted within his powers, and the find-
ings and judgment of the court will be presumed to be correct so far as
they depended on the deed of assignment and order of reference. Per-
dew v. Creditors of Coffin's Estate, 157.
FINDINGS OF REFEREE.-The findings of a referee stand as to their
conclusiveness in an appellate court the same as the verdict of a jury or
the findings of a court, and where these findings are supported by the
evidence and are not manifestly against the weight of the evidence, they
will not be disturbed by an appellate court. Ib.
FINDINGS OF TRIAL COURT. - Appellate courts will not be bound by
the findings of the trial court where there is a total absence of evidence,
or where the appellate tribunal is firmly satisfied that it is insufficient to
uphold the decree and the judgment is radically wrong. Brinker et al.
v. The U. P., D. & G. Ry. Co., 166.
INCOMPETENT EVIDENCE. - A judgment will be reversed on account of
the admission of incompetent evidence even where the trial is to the
court, if there was no other evidence on which to base the findings of
the court. Ib.
OMISSION FROM RECORD.--The omission of unimportant evidence, not
bearing on the main issue, from the bill of exceptions, does not preclude
an examination of the bill of exceptions on appeal. D. & R. G. R. R.
Co. v. Andrews, 204.
FINDINGS OF REFEREE. - Where the matters in issue in an action were
referred to a party to hear evidence and report his finding of fact and
APPELLATE PRACTICE-Continued.
conclusions of law to the court, the fact that in the order of reference
he was designated as "special master," instead of a referee, did not affect
his authority. By the order of reference he became a referee for the
purposes for which he was appointed with all the powers, prerogatives
and duties which our statute and the order of the court laid on him.
The findings of fact by the referee, approved by the lower court, are
binding on the court of appeals, if they are sustained by the evidence,
or if they rest on conflicting testimony. The United Water Works Co.
v. The Farmers' Loan and Trust Co., 225.
APPEALS AND WRITS OF ERROR-TWO REMEDIES.-A party cannot
pursue two remedies at the same time. A party desiring to have a final
judgment of a court reviewed must do so either by appeal or writ of
error. He cannot pursue both methods at the same time. But where a
party has commenced an appeal, and by failure to file the record within
time has lost his right of appeal, he is then by abandoning the appeal,
entitled to have his case reviewed upon writ of error. Smith v. Morrill
et al., 284.
PLEADING.-Where a case is tried in all respects as though the an-
swer was sufficient as a general denial to put in issue the allegations of
the complaint, without objection in the lower court, an objection to the
form of the answer raised for the first time on appeal will not be con-
sidered. Gallup v. Wortmann et al., 308.
APPEALS AND WRITS OF ERROR.---Where in a replevin suit the plain-
tiff recovered judgment against the defendant, but it was adjudged that
an intervenor had a prior lien on the property, an appeal by the plaintiff
from the judgment giving the intervenor a prior lien, did not deprive
the defendant of the right to afterwards have the judgment reviewed
on writ of error. Bruce v. Horn, 316.
JUDGMENTS-REASONS OF COURT.-A judgment will not be reversed
because the reasons given by the court are erroneous, if there is sufficient
in the record to sustain it on other grounds. Miller et al. v. Slaght, 358.
ABSTRACT OF RECORD.-Rule 16 of the court of appeals requires the
appellant or plaintiff in error to file with the clerk a printed abstract of
the record which shall fully state the points from the record relied on
for reversal. It is not enough to set forth in the abstract instructions
refused without those given; and it is not enough to set forth both with-
out the evidence. The court will not consider instructions refused un-
less the abstract also sets forth the instructions given and the evidence.
Otto & Schleter v. Hill, 431.
HARMLESS ERROR. -Notwithstanding an order dismissing a party
from the case and striking her pleading from the files was technically
erroneous, yet if assuming all the allegations of the pleading to be true
the final result must still have been the same as it was, the error was
harmless and would not warrant a disturbance. Tom Boy Gold Mines
Co. et al. v. Green et al., 447.
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