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sibly the court there went further than our

(27 Colo. 116) decisions permit, but in the case at bar it is

CARLILE v. PEOPLE. not necessary for us to go to that extent. In

(Supreme Court of Colorado. Nov. 9, 1899.) Fillmore v. Wells, 10 Colo. 228, 15 Pac. 343, this court, on page 235, 10 Colo., and page

PLEADING--SUFFICIENCY OF ANSWER-DE

NIAL OF EXECUTION OF SEAL346, 15 Pac., speaking by Helm, J., said: “If

ED INSTRUMENT. the attorney neglects to proceed to the en- 1. Where the separate answer of one defendforcement of his lien until the debtor has

ant contains a denial of the execution of the

bond sued on, it is error to sustain plaintiff's in good faith discharged his liability under motion for judgment on the pleadings. the judgment, or a third person has, in good 2. Under 1 Mills' Ann. St. § 410 (Gen. St. faith and for valuable consideration, purchas- 1883, § 3121), providing that any instrument of ed the fruits thereof, he should be held to

writing to which the maker shall affix a scroll,

by way of seal, shall be of the same effect as if have waived the right to look to the debtor, sealed, when the bond sued on contained the on one hand, or to such fruits, on the other, printed recital, “Sealed with our seal," and it for his compensation. That is to say, if,

does not appear that defendant did not adopt

as his seal the printed word "Seal," the defense without notice that the attorney intends to

that defendant did not seal the bond is not good. enforce his lien, the judgment debtor make a 3. The separate answer of a surety in an action bona fide settlement of the judgment, or an

on a bond, alleging, in general terms, negligence innocent third person purchase the property,

on the part of the obligee in instituting proceed

ings against the principal, is not sufficient, as the the statutory right is lost.” The converse of

facts relied upon to constitute negligence must this must be true, viz. that if the attorney's be pleaded. conduct is not such as to constitute laches, or

Error to district court, Pueblo county. a waiver, or operate as an estoppel, and if,

Action by the people of the state of Colowith notice that he intends to enforce his

rado, for the use and benefit of Pueblo counlien, the judgment debtor make a settlement

ty, against J. N. Carlile and others. Judg. of the judgment, or if one purchase the prop

ment for plaintiff. Defendant Carlile brings erty with full notice of the attorney's inten

error. Reversed. tion, the statutory lien is not lost. That is exactly the situation here. The lien was M. J. Galligan, for plaintiff in error. not lost by the attorneys' conduct. The board of county commissioners had notice that the PER CURIAM. This is an action against plaintiffs intended to enforce their lien. The the principal and sureties of a county treasbank, the assignee of the judgment, also had urer's bond. There was a judgment against full knowledge before it took the assignment. the obligors below, and the plaintiff in error

The decision of the court of appeals on the here (one of the sureties) has brought this former review is not conclusive upon this writ of error to reverse the judgment. To recourt upon this hearing. Moreover, that tri- view the same judgment, another writ of erbunal, in remanding the case to the district ror was sued out of this court by the other court, not having limited the parties to any sureties and the principal of the bond, and particular issue, must have intended that the as to them the judgment was reversed because should be tried de novo in all its as- cause of an error of the trial court in suspects. We are satisfied that there is nothing taining the plaintiff's motion for a judgment in its decision, and we find nothing in the upon the pleadings in disregard of specific deopinion, which can be regarded as a final ad- nials contained in one of the defenses of the judication of the rights either of the bank or answer. Gartley v. People, 24 Colo. 155, 49 of the county, or that any such result was Pac. 272. The plaintiff in error here, as intended. Neither in the cause which was the surety below, filed a separate answer, its decided by the court of appeals, nor in the specific denials being substantially the same action which we are now reviewing, has as those contained in the answer in that case. there been an election by the plaintiffs to For the same reason the judgment must be pursue the remedy against the county to the reversed, though the main affirmative defense exclusion of that against the bank, or against relied upon in both actions-being that the the bank to the exclusion of that against the moneys to recover which the action was county. In each action both the bank and brought were deposited by the county treasthe board of county commissioners were par- urer, the principal of the bond, in a solvent ties defendant. Our conclusion is that, un- bank, which subsequently failed, thereby render the undisputed facts disclosed by this dering him unable to turn over to his sucrecord, both the board of county commission- cessor the fund in controversy-was held in ers and the bank are liable to the plaintiffs, the other case to be insufficient, in law, to reand, in the event of a new trial, plaintiffs lease the obligors on his official. bond. may elect as to whether they shall seek a There are other defenses, however, in this single satisfaction of both or one, and, if so, answer which demand consideration. which one, of said defendants. The judg- 1. In the answer before the court in the ment of the county court is reversed, and the Gartley Case there was an admission of the cause remanded, with instructions to proceed execution by the defendants of the bond sued in accordance with the views announced in on, while in the answer here the execution is the opinion. Reversed.

denied. For this additional reason the sustaining of plaintiff's motion for a judgment names are signed thereto. Since, therefore, upon the pleadings was prejudicial to defend all the names inserted in the bond are signed ant.

to it, and all the obligors for whose liability 2. Another attempted defense is that the defendant stipulated are bound, the very condefendant did not seal the bond set forth in dition that fixes his own liability was comthe complaint, and did not affix a scroll: by plied with. While it is true that, under our way of seal thereto, and that the only seal practice, inconsistent defenses may be pleadupon the bond is a scroll by way of seal, and ed in the same answer, each defense therein that it was not affixed to the bond by this de- must be complete in, and consistent with, itfendant, or by his authority or consent. If self. It be assumed that defendant is not liable up

4. There is another defense which, after on the instrument sued upon unless it had a alleging that if all other conditions are presseal or its equivalent, the defense is incom- ent wbich, under the law, would make the deplete. By statute, in this state, any instru- fendant liable, he nevertheless has been rement of writing to which the maker shall leased from his obligation because of the negaffix a scroll, by way of seal, shall be of the ligence of the plaintiff in instituting proceedsame effect as if the same were sealed. 1 ings against Gartley, the principal of the bond, Mills' Ann. St. § 440 (Gen. St. 1883, $ 3121). to recover the amount not paid over to his In the complaint a copy of the bond is set successor. This defense is insufficient, howforth in hæc verba, in which is the recital, ever; for, even if negligence upon the part “Sealed with our seals," etc. For aught that of the obligee in beginning proceedings appears in this defense, when considered in against the principal would release the surethe light of the complaint, the defendant may ties,--which we do not decide,-there are no bave adopted as his seal the printed word facts whatever tending to show such negli“Seal,” with a scroll around it, put there by gence, but, on the contrary, negligence is simthe printer, which is common in printed bonds ply alleged in general terms, which is not alin this state; and, if that were the fact, lowable, under well-recognized rules of pleadwhich is not denied, this defense is not good. ing. Neither of the defenses as pleaded in

3. Another defense is that the defendant, if the answer, except the general denials above he signed this bond at all, did so upon condi- referred to, is a sufficient defense to the action that the principal and all the sureties

tion; but, on account of the error of the disnamed therein should execute it, and that all trict court in' rendering judgment for the names therein inserted should be signed, to

plaintiff in the face of the specific denials in it, and that, in the event that the principal the answer of some of the material allegaand all such sureties should not execute it, or tions of the complaint, upon which plaintiff's that all names therein inserted should not be cause of action is founded, the judgment signed to it, then the defendant should not be must be reversed; and it is so ordered. Reliable thereon, as surety or otherwise; and

versed. the further allegation is that, while ten names as principal and sureties are inserted

(26 Colo. 516) and appear in the body of the bond, there are only nine names signed thereto, and there

SHORE v. PEOPLE. fore the bond shows by its recitals, and by (Supreme Court of Colorado. Oct. 16, 1899.) the insertion of the names of principal and CONTEMPT APPEAL - QUESTIONS REVIEW.

ABLE-AFFIDAVIT-SUFFICIENCY_JURISDICsureties, more names than are actually sign

TION-ATTACHMENT - TRIAL - JUDGMENT ed to it; and that the bond was not deliver- COMMITMENT. ed to the obligee by this defendant. We take 1. On appeal from a judgment in contempt It that the defendant has endeavored to bring proceedings, only questions relating to the juris

diction of the court can be reviewed. himself within the principle laid down in the 2. Where defendant was enjoined from in leading case of Ward v. Churn, 18 Grat. 801, any manner interfering with an irrigating ditch, in which, under the facts of that case, wbich

an affidavit stating that defendant, in violation are claimed to be on all fours with this, the

of the injunction, cut the bank of the ditch, and

thereby so interfered with and destroyed it as obligors were held not bound by tbe bond, to prevent defendant's proper use of it, is suffwhether the condition were known to the cient to give the court issuing the injunction juobligee or not. This defense seeks to raise an

risdiction of contempt proceedings against de

fendant. important question, which should not be de

3. Under Civ. Code 1887, § 323, authorizing cided except upon full argument, and, as the an attachment for a contempt not committed in obligee bas not appeared by counsel to give the immediate presence of the court, the court us the benefit of his investigation, we shall

had jurisdiction to issue an attachment for a

defendant charged with violating an injunction decline to pass upon the question sought to restraining him from interfering with an irri. be raised, but which a fair construction of gating ditch, since such violation constituted a the pleading shows is not so presented as to

civil contempt.

4. Since Civ. Code 1887, $ 149, authorizes a call for a decision. This defense necessarily

judge to issue an attachment in contempt proassumes the execution of the bond, and it suf- ceedings, and to commit the defendant to jail ficiently appears from the face of the bond until the next term of court in which the injuncItself, whose execution is admitted, that only

tion is pending to answer the contempt, applies

only to attachments issued by a judge in chamnine obligors, including the principal and sure.

bers, and not to proceedings before the court in tire, are named in the bond, and all their term time. It was not error for a court to enter

59 P.-4

本 *

* its

judgment declaring a defendant guilty of con- was brought into court. A hearing was had, tempt, and committing him to jail until he paid

and upon the evidence produced the court a fine, at the same term at which the injunction was granted.

found that the defendant was guilty of vio5. Where defendant violated an injunction re- lating the provisions of the injunction, and straining him from interfering with an irrigating adjudged him guilty of contempt of court, ditch, a judgment imposing a fine and direct

and thereupon ordered that plaintiffs "recove ing that he stand committed until the fine was paid was not alternative nor indefinite, since de

er of and from the defendant

* judg. fendant could obtain his discharge by paying the ment in the sum of one hundred dollars and fine to the clerk of the court rendering the judge costs,

and that defendant be comment, or, if execution issue, to the sheriff. 6. Since Civ. Code 1887, 8 322, requiring facts

mitted to the common jail of Montrose county constituting a contempt to be set out in the

until the payment of said judgment." judgment, applies only to contempts committed in the presence of the court, and punished sum- John Gray, for plaintiff in error. David M. marily, such facts need not be set out in a judg- Campbell, Atty. Gen., Calvin E. Reed, Asst. ment for contempt in violating an injunction restraining defendant from interfering with an ir

Atty. Gen., and Don B. Carey, Asst.. Atty. rigating ditch.

Gen., for the People. Error to Morgan county court.

PI CUR Anderson Shore was convicted of a con

AM. The only questions that Dismissed. tempt, and brings error.

we can consider upon this review are juris

dictional ones, and the only matters argued, In the district court of Montrose county, in said to be of this character, are: (1) The affia cause entitled “Osborne et al., Plaintiffs, v. davit on which the warrant of attachment Anderson Shore et al., Defendants," a tem

was granted does not set up matters that porary writ of injunction, on plaintiffs' appli- constitute a contempt; (2) a warrant of atcation, was issued against the defendants,

tachment cannot lawfully issue in the first commanding them to "refrain from and de- instance; (3) the judgment was prematurely sist from cutting, filling, or in any manner in- rendered; (4) the judgment is void, because terfering with, the Chipeta ditch, *

it does not contain a recital of the acts or embankments and rights of way, and with conduct constituting the alleged contempt, the repairs and operation of the same by the and does not indicate how, and to whom, the Chipeta Ditch Company.” This in

fine should be paid, to entitle defendant to junction was duly served on the defendants, a discharge, and is in the alternative. and on the following day an application to 1. If we correctly understand the first the court (then in session) was made by the

point made, it is that, even though the acts plaintiffs, supported by affidavit, setting forth and conduct of the defendant mentioned in that the defendant Anderson Shore had vio- the affidavit are of such a nature as might lated the writ, in that on the next day aft- have rendered him guilty of contempt had his er a copy was served upon him, and while behavior accomplished the object intended, H. H. Dresser, the superintendent of the yet since there is no statement in the affidaditch (he being the agent and in the employ- vit that these acts in any way interfered with ment of the plaintiffs), was engaged in re- the operation or repair of the ditch, or that pairing the same, defendant Shore came up- its superintendent stopped work as the reon the right of way of the ditch where Dres- sult of the threats, or that the same frightenser was, and then and there threatened to ed him, or kept him from his work, no foun. kill him if he continued repairing the ditch, dation was laid to give the court jurisdiction and that said defendant, claiming the right in contempt. The affidavit does leave it in to do so,-though he had none, and the same some doubt as to whether the threats of vio. was in violation of the order for injunction,- lence terrorized the ditch superintendent, but made a cut under plaintiffs' ditch and in its that is not material. The defendant could bank, conveying water therethrough; that violate the order by acts falling far short of the cut so weakened and destroyed the ditch killing or intimidating that officer. The attias to prevent the proper use thereof by those davit distinctly charges that, after receiving entitled to it; and that defendant then said notice of the injunction, the defendant cut to Dresser that if he (Dresser) or any one the bank of the ditch, which he had no right else filled the cut, or interfered with the to do, and that this cutting so interfered same, that he (Shore) would dig it out again, with and destroyed the plaintiffs' ditch as and use force to keep it open, and that he to prevent its proper use. This is a direct would "drop" (meaning kill) any one who violation of the letter as well as spirit of that should interfere with or prevent the convey- part of the injunctive order which required ing of water through the said cut; and that the defendant to desist from cutting, or in since the issuance and service of the writ up- any wise interfering with, the ditch, and we on the defendant the latter has repeatedly hold that it was sufficient to give the court said to Dresser that in the matter of said cut jurisdiction. That is the limit of our inquiry, he would take the law into his own hands, unless jurisdiction was lost by some subseand use whatever force was necessary. Bas-quent act of the court, to which contention, ed on this affidavit, a warrant of attachment made by plaintiff in error, under the followwas ordered by the court. It was issued and ing heads we address ourselves. served upon the defendant, and the latter 2. The proceeding below was evidently under chapter 30 of the Code, and the various essary for the judgment to recite the facts orders were made by the court in term time. constituting the contempt. Where the conSection 323 of the Code of 1887 expressly au- tempt is not committed in the immediate thorizes the issuance of a warrant of attach- view and presence of the court or judge at ment in the first instance, although an order chambers,-in other words, in cases of conto show cause was also proper. Under our structive contempt, which this was,-since in decisions this is a civil contempt, and the such cases an affidavit must be presented procedure of this chapter is applicable. If setting forth the facts constituting the conany irregularities were committed, no objec- tempt, it is not necessary that the judgment tion was made at the time; and, besides, as should recite them. The only object of realready stated, we are precluded from con- quiring these facts to be shown somewhere sidering mere errors less grave than juris in the record is to enable the reviewing court dictional ones.

to see whether or not they amount to a con3. Section 149 of the Code is relied upon tempt, and thus to determine from them the for the proposition that this judgment was jurisdiction of the trial court. And, if the prematurely entered. The point is that if, procedure prescribed requires an affidavit under this section, the warrant of attach- first to be presented to the trial court conment may issue in the first instance, it is the taining these facts as the foundation of the duty of the judge or court, when defendant is

proceeding, the court of review can and does brought in by it, either to commit him to jail, look to the statement in the affidavit for the or to take bail for his appearance at the next purpose of ascertaining whether or not the term of court, and to postpone final judgment court below had jurisdiction, and it is not until term time. In People v. District Court of necessary to repeat the statement in the judgEl Paso Co., 19 Colo. 343, 35 Pac. 731, it was ment. We think it will be found on examheld that this section had reference solely to ination that it is only or usually under a proceedings before a judge at chambers, and practice where the judgment itself is the enhas no application to proceedings before the tire record that well-considered cases require court in term time. The judgment, there- it to contain a statement of the facts. Rawfore, was not prematurely rendered, and the son v. Rawson, 35 Ill. App. 505. Our examjurisdiction which the affidavit conferred was ination of the record satisfies us that the not ousted by a departure from the regular facts set up in the affidavit filed in the discourse of procedure provided for this class

trict court gave the court jurisdiction which of cases.

was not ousted by anything that occurred 4. In imposing a fine it is competent for during the investigation. The writ of error the court further to direct that the party should therefore be dismissed. shall stand committed until the fine is paid, and a judgment so providing is not subject to the criticism of being in the alternative. Nei

(26 Colo. 496) ther is this judgment subject to the charge of

THOMPSON v. PEOPLE. indefiniteness. It is in form substantially like judgments that are rendered under our prac

(Supreme Court of Colorado. Oct. 16. 1899.)

INDICTMENT tice. The defendant can obtain his discharge

CRIMINAL LAW - PERJURY

SUFFICIENCY-INSTRUCTIONS REQUESTS at any time by paying the fine to the clerk REFUSAL-HARMLESS ERROR-JURY-QUALIof the court, or, if execution issue, to the FICATIONS-COURT'S DISCRETION. sheriff. If the foregoing criticisms of the

1. Under Mills' Ann. St. $ 1272, declaring that

it shall be sufficient in an indictment for perfinal order were tenable at all, they do not

jury to set forth the substance of the offense present questions of the grave import that charged, the court before which the affirmation can be here considered. In some cases, as

was taken, and that the court had full power to the result of statute or judicial decision,-as

administer the oath, it is not necessary for the

indictment to expressly state that the court had in Reynolds v. McElhone, 20 How. Prac. 454, jurisdiction of the case in which the alleged De Witt v. Dennis, 30 How. Prac. 131, and false testimony was given, since an allegation State v. Galloway, 5 Cold. 326,--the rule is

that the court had authority to administer the

oath was sufficient. enforced requiring the judgment for contempt

2. It was not necessary to allege in such inor order of commitment to state upon its dictment how or in what manner the evidence face the cause of the contempt alleged as the alleged to be false was material to the issue,

where the indictment charged that the false ground of jurisdiction upon which judgment

testimony was material to an issue in a criminal is rendered. This was not necessary at com- prosecution. mon law; and it has been held that a state- 3. Refusal to give a correct instruction is not ment of the facts need not be made unless re

erroneous where it has been fully expressed in

another instruction given. quired by statute. Church, Hab. Corp. § 340;

4. Refusal to charge that defendant, indicted Rap. Contempt, $$ 1, 128; Easton v. State, 39 for perjury, should be acquitted unless the state Ala. 551. The judgment here did not con- had proved beyond a reasonable doubt that the tain this recital. But under section 322 of

court had jurisdiction of the action in which the

perjury was committed was proper, where it apour Civil Code we think it is only in con- peared from the record of such case in evidence tempts committed in the immediate view and that the court had jurisdiction, and defendant presence of the court or judge at chambers,

made no attempt to prove the contrary.

5. Where the state, in a prosecution for perthat is, in direct contempts.--and where pun

jury, did not rely solely on the evidence of one ishment is summarily inflicted, that it is nec- witness to show the falsity of the alleged testimony, an instruction that, if there was but one Colorado, the Honorable Horace G. Lunt, one witness testifying directly to the falsity of the

of the judges of said court, presiding, in a evidence, there must be evidence of circumstan

certain criminal case and prosecution coming ces corroborating such "falsified testimony," and that it was for the jury to determine whether on to be heard on a certain issue between the the corroborating circumstances were sufficient people of the state of Colorado and J. H. to justify a verdict of guilty, though erroneous,

Cremar, wherein the people of the state of and not requiring corroboration of the falsifying testimony, was not so misleading as to require

Colorado were plaintiffs and the said J. H. reversal.

Cremar was defendant, and which was then 6. Though the materiality of perjured testi- and there tried by a jury in that behalf, duly mony is for the court, yet, where the testimony was material, a submission of the question of

sworn, between the parties aforesaid, upon materiality to the jury, and their aflirmative

which said trial the said J. W. Thompson finding, was without prejudice.

then and there appeared as a witness for and 7. Mills' Ann. St. $ 2592, declares that a juror

on behalf of the said defendant, J. H. Creshall not be disqualified by reason of a previously formed or expressed opinion as to the defend

mar, and was then and there duly sworn beant's guilt or innocence if the court be satisfied fore the Honorable Horace G. Lunt, judge of from the juror's examination that he will ren- said court as aforesaid, by E. K. Gaylord, der an impartial verdict according to the law and the evidence. Held, that where a juror stated

the deputy clerk of said district court, that in his voir dire that he had formed and express

the evidence which the said J. W. Thompson ed an opinion as to defendant's guilt which he should give to the court then and there and still held, but that he would decide the issues ir.

to the jury so sworn as aforesaid, touching respective of his opinion, the overruling of defendant's challenge for cause was not an abuse

the matters in question, should be the truth, of discretion.

the whole truth, and nothing but the truth, Error to district court, El Paso county.

he, the said E. K. Gaylord, deputy clerk afore

said, then and there having sufficient authori. J. W. Thomps in was convicted of perjury, and he brings error. Affirmed.

ty to administer the said oath to the said J.

W. Thompson in that behalf; and at and W. D. Lombard and Crowell & McParlin, upon the trial of the issue so joined between for plaintiff in error. David M. Campbell, the parties aforesaid it then and there beAtty. Gen., Calvin E. Reed, Asst. Atty. Gen., came and was a material question whether, Dan B. Carey, Asst. Atty. Gen., and Henry upon the evening of August 11, 1897, after McAllister, Dist. Atty., for the People.

the shooting of one A. F. Meyers by the said

J. H. Oremar, and while the said J. H. CreGODDARD, J. The plaintiff in error was mar was leading the said A. F. Meyers from tried in the district court of El Paso county the store in which the said shooting had ocupon an information charging him with the curred, and upon the sidewalk in front therecrime of perjury. The trial resulted in a ver- of, the said A. F. Meyers handed to any one dict of guilty. Motions for a new trial and a pistol or revolver of any kind, saying at in arrest of judgment were filed and overrul- the time, "Take this,' and that the said J. W. ed, and he was sentenced to confinement in Thompson, being so sworn as aforesaid, then the penitentiary for the term of five years. and there, in the trial of the said issue, upon To review this judgment he brings the case his oath aforesaid, unlawfully, feloniously, here on error. The assignments of error pre- falsely, corruptly, knowingly, willfully, and sent substantially three grounds for reversal: maliciously, before the said jurors so sworn First, that the information is fatally defect- as aforesaid, and the Honorable Horace G. ive in matters of substance; second, that the Lunt, judge of said court, as aforesaid, did evidence introduced upon the trial was insuf- depose and swear, amongst other things, in ficient to sustain the verdict; third, that there substance and to the effect following; that was error in the trial in the admission of,

is to say:

That as the said A. F. Meyers and refusal to admit, certain testimony, and came out of the door with the said J. H. Creerror in the giving and refusing of certain in- mar, the said J. W. Thompson saw the said structions.

A. F. Meyers hand to some one a blue-barIn support of the first ground it is contend- reled pistol, saying at the time, 'Take this,' ed that the information is defective, because whereas, in truth and in fact the said A. F. it does not appear, either by express aver- Meyers, as he came out of the said store, upment or a statement of facts from which it on said occasion, or either in the store, or on might be presumed, that the district court of the sidewalk in front thereof, or in any other El Paso county had jurisdiction of the case in place, did not hand to any one a blue-barreled the trial of which the perjury is alleged to pistol, or any other pistol or weapon of any have been committed; and because it does kind,-all of which the said J. W. Thompson not set forth in what manner the testimony well knew; contrary to the form of the stat. of the defendant was material to the issue. ute in such case made and provided, and The information, inter alia, states that: “J. against the peace and dignity of the said the W. Thompson, on the 28th day of January, people of the state of Colorado." It may be A. D. 1898, at the said county of El Paso, conceded that this general form of allegation did then and there, before the First division would be bad by the rules of common law, of the district court of the Fourth judicial ) but, referring to section 1272 of our Criminal district of the state of Colorado, sitting with- Code (Mills' Ann. St.), it will be seen that in in and for the county of El Paso, state of this state the common law has been modified.

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