amendment whereby the time of payment is inserted does not change
the character of the action. Ib.
4. AMENDMENT AFTER APPEAL.-A court has power to vacate a
judgment at the term at which it was rendered, and permit the plead-
ings in the case to be amended, notwithstanding an appeal from the
judgment has been perfected. Higgins v. The People, 567.
5. SAME-DISCRETION. -The allowance of amendments to pleadings
rests in the sound discretion of the court. Ib.
6. BURDEN OF PROOF.-When the allegations of the complaint in an
action for damages for a breach of covenant of seizin are denied, the
burden of proof is upon the plaintiff. Landt v. Major, 551.
7. CANCELLATION OF DEEDS, WHEN NOT DECREED. -The complaint
showed that the state had held the fee to a portion of a certain "school
section," that it had been leased to D. who transferred the leasehold
interest to B., by whom valuable improvements were made upon the
premises. That defendant T. applied to the land board to purchase the
premises, and, in his application, made many false representations as
to the value of the improvements, the condition of the premises and
their abandonment. That, without an appraisement of the improve-
ments, the land was patented to him, he paying to the board for the
benefit of the owner of the improvements (in addition to the purchase
price) $150, the amount he represented their value to be. The relief
demanded was the cancellation of the patent to T. and various mesne
conveyances by him and his grantees; -to the end, apparently, that the
board and T. might be compelled to protect B. in his improvements and
secure the payment of their value: Held, that no cause of action was
stated in favor of the people. People v. Tynon, 131.
8. FRAUD.- Fraud is a conclusion of law from the facts stated. It is
not sufficient in a pleading to make a charge of fraud in general terms.
The particular fraudulent acts should be pointed out and stated. Rob-
inson v. Dolores Land & C. Co., 17.
9. RESCISSION OF DEED FOR FRAUD-LIMITATION. - A complaint filed
in July, 1887, to rescind a deed made in September, 1883, on the ground
of fraud, which does not show when the fraud was discovered, is barred
by Gen. Stats., sec. 2174, which provides that "Bills for relief on the
ground of fraud shall be filed within three years after the discovery by
the aggrieved party, of the facts constituting such fraud, and not after-
wards." Walker v. Pogue, 149.
10. PLEADING NEGLIGENCE. -Negligence is sufficiently charged in
a complaint which states that the defendant railroad company was un-
lawfully and negligently occupying a street crossing with its engines in
violation of a city ordinance, and that by reason of that fact, and with-
out negligence on part of the plaintiff, the injury complained of resulted.
Denver, etc., R. R. Co. v. Robbins, 313.
11. NEGLIGENCE-WHEN NOT REQUIRED TO BE SHOWN.-As to the
contention that no recovery could be had in this action without proof
of negligence, held, that the necessity of such proof is obviated by the
statute. U. P. R. R. Co. v. DeBusk, 12 Colo. 296, so construing the act
and declaring it to be constitutional, followed. Denver, etc., R. R. Co.
v. De Graf, 42.
12. PLEADING.-A complaint to rescind a conveyance on the ground
that the stock of goods taken in consideration therefor was not as rep-
resented, which shows that the goods were delivered to the plaintiff as
agreed, but fails to state when the fraud was discovered, or that the
goods were returned or tendered to the defendant, is bad on general
demurrer. Walker v. Pogue, 149.
13. PLEADING FACTS, NOT CONCLUSIONS, SHOULD BE STATED.-The
conclusions of the pleader stated as facts, broad, general assertions,
sweeping and comprehensive accusations of conspiracy, fraud, misman-
agement and incompetency, cannot be made to supply the want of a
specific statement of facts. Robinson v. Dolores Land & C. Co., 17.
3. SAME-RECITALS NOT CONCLUSIVE. -A recital in an ordinance that
"public welfare and safety require " an act to be done is not conclusive
upon the judiciary. Courts are not bound by mere forms, nor are they
to be misled by mere pretenses. Ib.
PRACTICE IN COURT OF APPEALS: See APPELLATE COURT.
PRACTICE IN CIVIL ACTIONS:
1. 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.
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
Pub. 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. APPEARANCE.-Defendant is not required to appear and answer
the complaint in obedience to a second summons while his motion to
quash the first is pending. Farris v. Walter, 450.
5. 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. of
Pitkin Co. v. Brown, 473.
6. COLLATERAL ATTACK. -The sufficiency of the affidavit cannot be
attacked collaterally by a third party. Leppel v. Beck, 390.
7. PRACTICE-TIME OF FILING DEMURRER.-A demurrer to an answer
eannot be filed after expiration of the time prescribed by statute, and
after a motion by defendant for judgment on the pleadings, without
leave of court. The court was not bound to consider a demurrer so
filed. Rhoads v. Gatlin, 96.
8. PRACTICE-DISCRETION. -The conduct of the trial and control of
counsel is so fully within the discretion of the trial court, that its action
in this respect will not be reviewed, unless it is manifest that discretion
has been plainly and grossly abused. Felt v. Cleghorn, 4.
9. SAME POINT. Hill v. Colorado Nat. Bank, 325.
10. PRACTICE IN DIVORCE CASES.-It is of no consequence how the
court obtains the requisite legal knowledge of the fact of plaintiff's adul-
tery. It may crop out of the proofs without having been pleaded, but
must be acted upon by the court. If it shall appear, no divorce can be
decreed. Redington v. Redington, 8.
11. EVIDENCE OF FACTS, NOT ADMISSIBLE WITHOUT PLEADING. -Evi-
dence of facts not pleaded is not admissible, and if admitted will not
support a decree. McLaughlin v. Thompson, 135.
12. FINDINGS OF FACT MUST BE UPON EVIDENCE. -The convictions of
the judge based upon personal observations cannot take the place of
competent evidence. The Denver City Ry. Co. v. City of Denver, 34.
13. TITLE TO OFFICE-MANDAMUS.-When a person is in actual pos-
session of an office, under election or commission, and exercising its
duties under color of right, his title to the office cannot be tried or test-
ed on mandamus. Henderson v. Glynn, 303.
14. MECHANICS' LIEN-PARTIES.-In an action to foreclose a lien by
a material man or subcontractor, the contractor or original promisor,
against whom a debt must be established as the foundation of a decree,
is an indispensable party. Davis v. The John Mouat L. Co., 381.
15. NATIONAL BANK-PRACTICE. -A national bank organized to do
business in this state is not a foreign corporation within the rule which
requires proof of corporate existence under a general denial. Hummel
v. First Nat. Bank, 571.
16. NEW TRIAL-WHEN GRANTED-Where there is no competent
evidence upon which a verdict could have been predicated, and where
it must have been the result of prejudice, it should be set aside. The
Denver, Texas & Gulf R. R. Co. v. De Graff, 42.
17. NONSUIT-WHEN JUSTIFIED.-In order to justify the court in with-
drawing a case for damages from the jury, the facts should not only be
undisputed, but the conclusions to be drawn from those facts indisput-
able. City of Denver v. Soloman, 534.
18. SAME. It is only where the circumstances in an action for dam-
ages are such that the standard of duty is fixed and the measure of
duty defined by law and is the same under all circumstances, that the
court can withdraw it from the jury. Ib.
19. NONSUIT. - It is not error to refuse a nonsuit when there is evi-
dence of damage for which a recovery could be legally had. The Catlin
Land & C. Co. v. Best, 481.
20. PRACTICE. -A fact admitted by the pleadings need not be proved.
City of Denver v. Soloman, 534.
21. SAME.-An objection on the ground of nonjoinder of a party can-
not be raised for the first time in this court.
22. SAME.-A party cannot assign as error an instruction given at his
request. Ib.
23. PRACTICE. - Questions as to misjoinder of parties defendant, not
saved by the record, will not be considered on appeal. The Owl Canon
Gypsum Co. v. Ferguson, 219.
24. PRACTICE. - A failure to serve the defendant in attachment with
a copy of the writ can be taken advantage of only by the defendant not
served. Elliott v. First Nat. Bank, 164.
25. OBJECTIONS-WAIVED.-Failing to take advantage of material
defect, and by pleading to the merits, the defendant will be presumed
to have waived his objection. Morris v. Hanson, 154.
26. PRACTICE. -When a party's objection to the introduction of testi-
mony was sustained, he will not be heard to complain that it was not
introduced. Warner v. Town of Gunnison, 430.
27. PRACTICE.-In cases where the testimony was taken before a
referee and by him certified to the trial court, the appellate court will,
upon review, examine the evidence and determine for itself the correct-
ness of the findings of fact. Childs v. Lowenbruck, 92.
28. PRACTICE. - Where the judge of the court was ex officio clerk,
there was no occasion for an order of court to the clerk to make an as-
sessment of the several amounts each attaching creditor was entitled to
out of the property attached. The assessment having been made by
the judge in his capacity as clerk it was sufficient. Rawles v. The Peo-
ple, 501.
29. 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. of Pitkin Co. v. Brown, 473.
30. PRACTICE. -One White recovered judgment in justice court against
Madeley & Brophy for $297 and costs. Madeley & Brophy appealed to
the county court, and while the appeal was pending sent C. to com-
promise and adjust the matter, giving him $135 for that purpose. C.,
as he and his principals supposed, succeeded in effecting a compromise.
At the time of the supposed adjustment White executed and delivered
a receipt for $175, reciting that it was in full payment and settlement
of the case pending on appeal.
The receipt was not filed in the county court, but the appeal was dis-
missed. The justice to whom the case was remanded issued an execu-
tion on the judgment for the entire amount, and the constable proceeded
to make a levy.
Madeley & Brophy brought this action to obtain an injunction against
White, and the justice, and constable, to restrain them from further
proceedings under the judgment and execution. At this time White re-
pudiated the receipt, admitted its delivery, but claimed that he had re-
ceived only a note for $40, and $50 cash. Held-
That as the receipt was notin full of the amount of judgment except
by agreement of the parties, when challenged, it could not be held a
discharge.
The transactions between Madeley & Brophy and their agent C. could
not affect White.
The receipt not having been filed in county court, and the judgment
satisfied, it was, in the district court, open to explanation.
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