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59 PACIFIC REPORTER.

sibly the court there went further than our
decisions permit, but in the case at bar it is
not necessary for us to go to that extent. In
Fillmore v. Wells, 10 Colo. 228, 15 Pac. 343,
this court, on page 235, 10 Colo., and page
346, 15 Pac., speaking by Helm, J., said: "If
the attorney neglects to proceed to the en-
forcement of his lien until the debtor has
in good faith discharged his liability under
the judgment, or a third person has, in good
faith and for valuable consideration, purchas-
ed the fruits thereof, he should be held to
have waived the right to look to the debtor,
on one hand, or to such fruits, on the other,
That is to say, if,
for his compensation.
without notice that the attorney intends to
enforce his lien, the judgment debtor make a
bona fide settlement of the judgment, or an
innocent third person purchase the property,
the statutory right is lost." The converse of
this must be true, viz. that if the attorney's
conduct is not such as to constitute laches, or
a waiver, or operate as an estoppel, and if,
with notice that he intends to enforce his
lien, the judgment debtor make a settlement
of the judgment, or if one purchase the prop-
erty with full notice of the attorney's inten-
tion, the statutory lien is not lost. That is
The lien was
exactly the situation here.
not lost by the attorneys' conduct. The board
of county commissioners had notice that the
plaintiffs intended to enforce their lien. The
bank, the assignee of the judgment, also had
full knowledge before it took the assignment.

The decision of the court of appeals on the
former review is not conclusive upon this
court upon this hearing. Moreover, that tri-
bunal, in remanding the case to the district
court, not having limited the parties to any
particular issue, must have intended that the
cause should be tried de novo in all its as-
pects. We are satisfied that there is nothing
in its decision, and we find nothing in the
opinion, which can be regarded as a final ad-
judication of the rights either of the bank or
of the county, or that any such result was
Neither in the cause which was
intended.
decided by the court of appeals, nor in the
action which we are now reviewing, has
there been an election by the plaintiffs to
pursue the remedy against the county to the
exclusion of that against the bank, or against
the bank to the exclusion of that against the
county. In each action both the bank and
the board of county commissioners were par-
ties defendant. Our conclusion is that, un-
der the undisputed facts disclosed by this
record, both the board of county commission-
ers and the bank are liable to the plaintiffs,
and, in the event of a new trial, plaintiff's
may elect as to whether they shall seek a
single satisfaction of both or one, and, if so,
which one, of said defendants.

The judg

ment of the county court is reversed, and the
cause remanded, with instructions to proceed
in accordance with the views announced in
the opinion. Reversed.

CARLILE v. PEOPLE.

(Supreme Court of Colorado.

(27 Colo. 116)

Nov. 9, 1899.)

PLEADING-SUFFICIENCY OF ANSWER-DE-
NIAL OF EXECUTION OF SEAL-

ED INSTRUMENT.

1. Where the separate answer of one defendant contains a denial of the execution of the bond sued on, it is error to sustain plaintiff's motion for judgment on the pleadings.

2. Under 1 Mills' Ann. St. § 440 (Gen. St. 1883, § 3121), providing that any instrument of writing to which the maker shall affix a scroll, by way of seal, shall be of the same effect as if sealed, when the bond sued on contained the printed recital, "Sealed with our seal," and it does not appear that defendant did not adopt as his seal the printed word "Seal," the defense that defendant did not seal the bond is not good.

3. The separate answer of a surety in an action on a bond, alleging, in general terms, negligence on the part of the obligee in instituting proceedings against the principal, is not sufficient, as the facts relied upon to constitute negligence must be pleaded.

Error to district court, Pueblo county. Action by the people of the state of Colorado, for the use and benefit of Pueblo counJudgty, against J. N. Carlile and others. ment for plaintiff. Defendant Carlile brings error. Reversed.

M. J. Galligan, for plaintiff in error.

PER CURIAM.

This is an action against the principal and sureties of a county treasurer's bond. There was a judgment against the obligors below, and the plaintiff in error here (one of the sureties) has brought this writ of error to reverse the judgment. To review the same judgment, another writ of error was sued out of this court by the other sureties and the principal of the bond, and as to them the judgment was reversed because of an error of the trial court in sustaining the plaintiff's motion for a judgment upon the pleadings in disregard of specific denials contained in one of the defenses of the Gartley v. People, 24 Colo. 155, 49 answer. Pac. 272. The plaintiff in error here, as the surety below, filed a separate answer, its specific denials being substantially the same as those contained in the answer in that case. For the same reason the judgment must be reversed, though the main affirmative defense relied upon in both actions-being that the moneys to recover which the action brought were deposited by the county treasurer, the principal of the bond, in a solvent bank, which subsequently failed, thereby rendering him unable to turn over to his successor the fund in controversy-was held in the other case to be insufficient, in law, to release the obligors on his official. bond.

was

There are other defenses, however, in this answer which demand consideration.

1. In the answer before the court in the Gartley Case there was an admission of the execution by the defendants of the bond sued on, while in the answer here the execution is denied. For this additional reason the sus

taining of plaintiff's motion for a judgment upon the pleadings was prejudicial to defend

ant.

2. Another attempted defense is that the defendant did not seal the bond set forth in the complaint, and did not affix a scroll by way of seal thereto, and that the only seal upon the bond is a scroll by way of seal, and that it was not affixed to the bond by this defendant, or by his authority or consent. If

it be assumed that defendant is not liable upon the instrument sued upon unless it had a seal or its equivalent, the defense is incomplete. By statute, in this state, any instrument of writing to which the maker shall affix a scroll, by way of seal, shall be of the same effect as if the same were sealed. 1 Mills' Ann. St. § 440 (Gen. St. 1883, § 3121). In the complaint a copy of the bond is set forth in hæc verba, in which is the recital, "Sealed with our seals," etc. For aught that appears in this defense, when considered in the light of the complaint, the defendant may have adopted as his seal the printed word "Seal," with a scroll around it, put there by the printer, which is common in printed bonds in this state; and, if that were the fact, which is not denied, this defense is not good.

3. Another defense is that the defendant, if he signed this bond at all, did so upon condition that the principal and all the sureties named therein should execute it, and that all names therein inserted should be signed, to it, and that, in the event that the principal and all such sureties should not execute it, or that all names therein inserted should not be signed to it, then the defendant should not be liable thereon, as surety or otherwise; and the further allegation is that, while ten names as principal and sureties are inserted and appear in the body of the bond, there are only nine names signed thereto, and therefore the bond shows by its recitals, and by the insertion of the names of principal and sureties, more names than are actually signed to it; and that the bond was not delivered to the obligee by this defendant. We take it that the defendant has endeavored to bring himself within the principle laid down in the leading case of Ward v. Churn, 18 Grat. 801, in which, under the facts of that case, which are claimed to be on all fours with this, the obligors were held not bound by the bond, whether the condition were known to the obligee or not. This defense seeks to raise an important question, which should not be decided except upon full argument, and, as the obligee has not appeared by counsel to give us the benefit of his investigation, we shall 'decline to pass upon the question sought to be raised, but which a fair construction of the pleading shows is not so presented as to call for a decision. This defense necessarily assumes the execution of the bond, and it sufficiently appears from the face of the bond itself, whose execution is admitted, that only nine obligors, including the principal and sureties, are named in the bond, and all their 59 P.-4

names are signed thereto. Since, therefore, all the names inserted in the bond are signed to it, and all the obligors for whose liability defendant stipulated are bound, the very condition that fixes his own liability was complied with. While it is true that, under our practice, inconsistent defenses may be pleaded in the same answer, each defense therein must be complete in, and consistent with, itself.

4. There is another defense which, after alleging that if all other conditions are present which, under the law, would make the defendant liable, he nevertheless has been released from his obligation because of the negligence of the plaintiff in instituting proceedings against Gartley, the principal of the bond, to recover the amount not paid over to his successor. This defense is insufficient, however; for, even if negligence upon the part of the obligee in beginning proceedings against the principal would release the sureties, which we do not decide,-there are no facts whatever tending to show such negligence, but, on the contrary, negligence is simply alleged in general terms, which is not allowable, under well-recognized rules of pleading. Neither of the defenses as pleaded in the answer, except the general denials above referred to, is a sufficient defense to the action; but, on account of the error of the district court in rendering judgment for the plaintiff in the face of the specific denials in the answer of some of the material allegations of the complaint, upon which plaintiff's cause of action is founded, the judgment must be reversed; and it is so ordered. Reversed.

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1. On appeal from a judgment in contempt proceedings, only questions relating to the jurisdiction of the court can be reviewed.

2. Where defendant was enjoined from in any manner interfering with an irrigating ditch, an affidavit stating that defendant, in violation of the injunction, cut the bank of the ditch, and thereby so interfered with and destroyed it as to prevent defendant's proper use of it, is sufficient to give the court issuing the injunction jurisdiction of contempt proceedings against defendant.

3. Under Civ. Code 1887, § 323, authorizing an attachment for a contempt not committed in the immediate presence of the court, the court had jurisdiction to issue an attachment for a defendant charged with violating an injunction restraining him from interfering with an irrigating ditch, since such violation constituted a civil contempt.

4. Since Civ. Code 1887, § 149, authorizes a judge to issue an attachment in contempt proceedings, and to commit the defendant to jail until the next term of court in which the injunetion is pending to answer the contempt, applies only to attachments issued by a judge in chambers, and not to proceedings before the court in term time. It was not error for a court to enter

judgment declaring a defendant guilty of contempt, and committing him to jail until he paid a fine, at the same term at which the injunction was granted.

5. Where defendant violated an injunction restraining him from interfering with an irrigating ditch, a judgment imposing a fine and directing that he stand committed until the fine was paid was not alternative nor indefinite, since defendant could obtain his discharge by paying the fine to the clerk of the court rendering the judgment, or, if execution issue, to the sheriff.

6. Since Civ. Code 1887, § 322, requiring facts constituting a contempt to be set out in the judgment, applies only to contempts committed in the presence of the court, and punished summarily, such facts need not be set out in a judgment for contempt in violating an injunction restraining defendant from interfering with an irrigating ditch.

Error to Morgan county court.

Anderson Shore was convicted of a contempt, and brings error. Dismissed.

*

*

In the district court of Montrose county, in a cause entitled "Osborne et al., Plaintiffs, v. Anderson Shore et al., Defendants," a temporary writ of injunction, on plaintiffs' application, was issued against the defendants, commanding them to "refrain from and desist from cutting, filling, or in any manner interfering with, the Chipeta ditch, its embankments and rights of way, and with the repairs and operation of the same by the ** Chipeta Ditch Company." This injunction was duly served on the defendants, and on the following day an application to the court (then in session) was made by the plaintiffs, supported by affidavit, setting forth that the defendant Anderson Shore had violated the writ, in that on the next day after a copy was served upon him, and while H. H. Dresser, the superintendent of the ditch (he being the agent and in the employment of the plaintiffs), was engaged in repairing the same, defendant Shore came upon the right of way of the ditch where Dresser was, and then and there threatened to kill him if he continued repairing the ditch, and that said defendant, claiming the right to do so, though he had none, and the same was in violation of the order for injunction,— made a cut under plaintiffs' ditch and in its bank, conveying water therethrough; that the cut so weakened and destroyed the ditch as to prevent the proper use thereof by those entitled to it; and that defendant then said to Dresser that if he (Dresser) or any one else filled the cut, or interfered with the same, that he (Shore) would dig it out again, and use force to keep it open, and that he would "drop" (meaning kill) any one who should interfere with or prevent the conveying of water through the said cut; and that since the issuance and service of the writ upon the defendant the latter has repeatedly said to Dresser that in the matter of said cut he would take the law into his own hands, and use whatever force was necessary. Based on this affidavit, a warrant of attachment was ordered by the court. It was issued and served upon the defendant, and the latter

was brought into court. A hearing was had, and upon the evidence produced the court found that the defendant was guilty of violating the provisions of the injunction, and adjudged him guilty of contempt of court, and thereupon ordered that plaintiffs "recover of and from the defendant * * judgment in the sum of one hundred dollars and costs, and that defendant be committed to the common jail of Montrose county until the payment of said judgment."

John Gray, for plaintiff in error. David M. Campbell, Atty. Gen., Calvin E. Reed, Asst. Atty. Gen., and Don B. Carey, Asst. Atty. Gen., for the People.

PER CURIAM. The only questions that we can consider upon this review are jurisdictional ones, and the only matters argued, said to be of this character, are: (1) The affidavit on which the warrant of attachment was granted does not set up matters that constitute a contempt; (2) a warrant of attachment cannot lawfully issue in the first instance; (3) the judgment was prematurely rendered; (4) the judgment is void, because it does not contain a recital of the acts or conduct constituting the alleged contempt, and does not indicate how, and to whom, the fine should be paid, to entitle defendant to a discharge, and is in the alternative.

1. If we correctly understand the first point made, it is that, even though the acts and conduct of the defendant mentioned in the affidavit are of such a nature as might have rendered him guilty of contempt had his behavior accomplished the object intended, yet since there is no statement in the affidavit that these acts in any way interfered with the operation or repair of the ditch, or that its superintendent stopped work as the result of the threats, or that the same frightened him, or kept him from his work, no foundation was laid to give the court jurisdiction in contempt. The affidavit does leave it in some doubt as to whether the threats of violence terrorized the ditch superintendent, but that is not material. The defendant could violate the order by acts falling far short of killing or intimidating that officer. The affidavit distinctly charges that, after receiving notice of the injunction, the defendant cut the bank of the ditch, which he had no right to do, and that this cutting so interfered with and destroyed the plaintiffs' ditch as to prevent its proper use. This is a direct violation of the letter as well as spirit of that part of the injunctive order which required the defendant to desist from cutting, or in any wise interfering with, the ditch, and we hold that it was sufficient to give the court jurisdiction. That is the limit of our inquiry, unless jurisdiction was lost by some subsequent act of the court, to which contention, made by plaintiff in error, under the following heads we address ourselves.

2. The proceeding below was evidently un

der chapter 30 of the Code, and the various orders were made by the court in term time. Section 323 of the Code of 1887 expressly authorizes the issuance of a warrant of attachment in the first instance, although an order to show cause was also proper. Under our decisions this is a civil contempt, and the procedure of this chapter is applicable. any irregularities were committed, no objection was made at the time; and, besides, as already stated, we are precluded from considering mere errors less grave than jurisdictional ones.

If

3. Section 149 of the Code is relied upon for the proposition that this judgment was prematurely entered. The point is that if, under this section, the warrant of attachment may issue in the first instance, it is the duty of the judge or court, when defendant is brought in by it, either to commit him to jail, or to take bail for his appearance at the next term of court, and to postpone final judgment until term time. In People v. District Court of El Paso Co., 19 Colo. 343, 35 Pac. 731, it was held that this section had reference solely to proceedings before a judge at chambers, and has no application to proceedings before the court in term time. The judgment, therefore, was not prematurely rendered, and the jurisdiction which the affidavit conferred was not ousted by a departure from the regular course of procedure provided for this class of cases.

4. In imposing a fine it is competent for the court further to direct that the party shall stand committed until the fine is paid, and a judgment so providing is not subject to the criticism of being in the alternative. Neither is this judgment subject to the charge of indefiniteness. It is in form substantially like judgments that are rendered under our practice. The defendant can obtain his discharge at any time by paying the fine to the clerk of the court, or, if execution issue, to the sheriff. If the foregoing criticisms of the final order were tenable at all, they do not present questions of the grave import that can be here considered. In some cases, as the result of statute or judicial decision,-as in Reynolds v. McElhone, 20 How. Prac. 454, De Witt v. Dennis, 30 How. Prac. 131, and State v. Galloway, 5 Cold. 326,-the rule is enforced requiring the judgment for contempt or order of commitment to state upon its face the cause of the contempt alleged as the ground of jurisdiction upon which judgment is rendered. This was not necessary at common law; and it has been held that a statement of the facts need not be made unless required by statute. Church, Hab. Corp. § 340; Rap. Contempt, §§ 1, 128; Easton v. State, 39 Ala. 551. The judgment here did not contain this recital. But under section 322 of our Civil Code we think it is only in contempts committed in the immediate view and presence of the court or judge at chambers,that is, in direct contempts,-and where punishment is summarily inflicted, that it is nec

essary for the judgment to recite the facts constituting the contempt. Where the contempt is not committed in the immediate view and presence of the court or judge at chambers,-in other words, in cases of constructive contempt, which this was, since in such cases an affidavit must be presented setting forth the facts constituting the contempt, it is not necessary that the judgment should recite them. The only object of requiring these facts to be shown somewhere in the record is to enable the reviewing court to see whether or not they amount to a contempt, and thus to determine from them the jurisdiction of the trial court. And, if the procedure prescribed requires an affidavit first to be presented to the trial court containing these facts as the foundation of the proceeding, the court of review can and does look to the statement in the affidavit for the purpose of ascertaining whether or not the court below had jurisdiction, and it is not necessary to repeat the statement in the judgment. We think it will be found on examination that it is only or usually under a practice where the judgment itself is the entire record that well-considered cases require it to contain a statement of the facts. Rawson v. Rawson, 35 Ill. App. 505. Our examination of the record satisfies us that the facts set up in the affidavit filed in the district court gave the court jurisdiction which was not ousted by anything that occurred during the investigation. The writ of error should therefore be dismissed.

(26 Colo. 496)

THOMPSON v. PEOPLE. (Supreme Court of Colorado. Oct. 16. 1899.) CRIMINAL LAW- PERJURY INDICTMENTSUFFICIENCY-INSTRUCTIONS - REQUESTS REFUSAL HARMLESS ERROR-JURY-QUALI

FICATIONS-COURT'S DISCRETION.

1. Under Mills' Ann. St. § 1272, declaring that it shall be suflicient in an indictment for perjury to set forth the substance of the offense charged, the court before which the affirmation was taken, and that the court had full power to administer the oath, it is not necessary for the indictment to expressly state that the court had jurisdiction of the case in which the alleged false testimony was given, since an allegation that the court had authority to administer the oath was sufficient.

2. It was not necessary to allege in such indictment how or in what manner the evidence alleged to be false was material to the issue, where the indictment charged that the false testimony was material to an issue in a criminal prosecution.

3. Refusal to give a correct instruction is not erroneous where it has been fully expressed in another instruction given.

4. Refusal to charge that defendant, indicted for perjury, should be acquitted unless the state had proved beyond a reasonable doubt that the court had jurisdiction of the action in which the perjury was committed was proper, where it appeared from the record of such case in evidence that the court had jurisdiction, and defendant made no attempt to prove the contrary.

5. Where the state, in a prosecution for perjury, did not rely solely on the evidence of one witness to show the falsity of the alleged testi

mony, an instruction that, if there was but one witness testifying directly to the falsity of the evidence, there must be evidence of circumstances corroborating such "falsified testimony," and that it was for the jury to determine whether the corroborating circumstances were sufficient to justify a verdict of guilty, though erroneous, and not requiring corroboration of the falsifying testimony, was not so misleading as to require reversal.

6. Though the materiality of perjured testimony is for the court, yet, where the testimony was material, a submission of the question of materiality to the jury, and their affirmative finding, was without prejudice.

7. Mills' Ann. St. § 2592, declares that a juror shall not be disqualified by reason of a previously formed or expressed opinion as to the defendant's guilt or innocence if the court be satisfied from the juror's examination that he will render an impartial verdict according to the law and the evidence. Held, that where a juror stated in his voir dire that he had formed and expressed an opinion as to defendant's guilt which he still held, but that he would decide the issues irrespective of his opinion, the overruling of defendant's challenge for cause was not an abuse of discretion.

Error to district court, El Paso county. J. W. Thompson was convicted of perjury, and he brings error. Affirmed.

W. D. Lombard and Crowell & McParlin, for plaintiff in error. David M. Campbell, Atty. Gen., Calvin E. Reed, Asst. Atty. Gen., Dan B. Carey, Asst. Atty. Gen., and Henry McAllister, Dist. Atty., for the People.

GODDARD, J. The plaintiff in error was tried in the district court of El Paso county upon an information charging him with the crime of perjury. The trial resulted in a verdict of guilty. Motions for a new trial and in arrest of judgment were filed and overruled, and he was sentenced to confinement in the penitentiary for the term of five years. To review this judgment he brings the case here on error. The assignments of error present substantially three grounds for reversal: First, that the information is fatally defective in matters of substance; second, that the evidence introduced upon the trial was insufficient to sustain the verdict; third, that there was error in the trial in the admission of, and refusal to admit, certain testimony, and error in the giving and refusing of certain instructions.

In support of the first ground it is contended that the information is defective, because it does not appear, either by express averment or a statement of facts from which it might be presumed, that the district court of El Paso county had jurisdiction of the case in the trial of which the perjury is alleged to have been committed; and because it does not set forth in what manner the testimony of the defendant was material to the issue. The information, inter alia, states that: "J. W. Thompson, on the 28th day of January, A. D. 1898, at the said county of El Paso, did then and there, before the First division of the district court of the Fourth judicial district of the state of Colorado, sitting within and for the county of El Paso, state of

Colorado, the Honorable Horace G. Lunt, one of the judges of said court, presiding, in a certain criminal case and prosecution coming on to be heard on a certain issue between the people of the state of Colorado and J. H. Cremar, wherein the people of the state of Colorado were plaintiffs and the said J. H. Cremar was defendant, and which was then and there tried by a jury in that behalf, duly sworn, between the parties aforesaid, upon which said trial the said J. W. Thompson then and there appeared as a witness for and on behalf of the said defendant, J. H. Cremar, and was then and there duly sworn before the Honorable Horace G. Lunt, judge of said court as aforesaid, by E. K. Gaylord, the deputy clerk of said district court, that the evidence which the said J. W. Thompson should give to the court then and there and to the jury so sworn as aforesaid, touching the matters in question, should be the truth, the whole truth, and nothing but the truth, he, the said E. K. Gaylord, deputy clerk aforesaid, then and there having sufficient authority to administer the said oath to the said J. W. Thompson in that behalf; and at and upon the trial of the issue so joined between the parties aforesaid it then and there became and was a material question whether, upon the evening of August 11, 1897, after the shooting of one A. F. Meyers by the said J. H. Cremar, and while the said J. H. Cremar was leading the said A. F. Meyers from the store in which the said shooting had occurred, and upon the sidewalk in front thereof, the said A. F. Meyers handed to any one a pistol or revolver of any kind, saying at the time, "Take this,' and that the said J. W. Thompson, being so sworn as aforesaid, then and there, in the trial of the said issue, upon his oath aforesaid, unlawfully, feloniously, falsely, corruptly, knowingly, willfully, and maliciously, before the said jurors so sworn as aforesaid, and the Honorable Horace G. Lunt, judge of said court, as aforesaid, did depose and swear, amongst other things, in substance and to the effect following; that is to say: That as the said A. F. Meyers came out of the door with the said J. H. Cremar, the said J. W. Thompson saw the said A. F. Meyers hand to some one a blue-barreled pistol, saying at the time, "Take this,' whereas, in truth and in fact the said A. F. Meyers, as he came out of the said store, upon said occasion, or either in the store, or on the sidewalk in front thereof, or in any other place, did not hand to any one a blue-barreled pistol, or any other pistol or weapon of any kind, all of which the said J. W. Thompson well knew; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the said the people of the state of Colorado." It may be conceded that this general form of allegation would be bad by the rules of common law, but, referring to section 1272 of our Criminal Code (Mills' Ann. St.), it will be seen that in this state the common law has been modified.

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