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follows: That Rowe, late of the county of Boulder and state of Colorado, on the 8th day of August, in the year of our Lord one thousand eight hundred and ninety-eight, at and within the county and state aforesaid, one horse, of the personal goods, chattels, and property of Frederick Sherwood, then and there being found, did then and there unlawfully and feloniously steal, take, lead, and drive away, and did then and there unlawfully and feloniously deprive the said owner of the immediate possession thereof, and did then and there unlawfully and feloniously apply the same to his own use, with intent to steal the same.

"" The statute under which the informations were drawn is as follows: "Any person who shall steal, embezzle or unlawfully kill, sell, drive, lead or ride away, or in any manner unlawfully deprive the owner of the immediate possession of any neat cattle, horse, mule, sheep, goat, swine or ass, or any person who shall steal, embezzle or unlawfully kill, sell, drive, lead or ride away, or in any manner unlawfully apply to his own use any neat cattle, horse, mule, goat, sheep, ass or swine, the owner of which is unknown, shall be deemed guilty of larceny. Sess. Laws 1891, p. 130. The cases were tried together, and defendants were found guilty. Edward was sentenced to a term of six years', and George to four years and six months', confinement in the penitentiary. To reverse these sentences they bring the cases here on error.

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S. T. Horn, for plaintiffs in error. David M. Campbell, Atty. Gen., Calvin E. Reed, Asst. Atty. Gen., Dan B. Carey, Asst. Atty. Gen., and Adam C. Patton, Dist. Atty., for the People.

GODDARD, J. (after stating the facts). The first error relied on for reversal is that the court erred in denying the motion made at the conclusion of the people's testimony to discharge defendants, for the reason that the evidence failed to prove that the horse was taken from the possession of Sherwood. The evidence upon this point was, in substance, as follows: Mr. Sherwood, the owner of the horse, testified that he arrived at Magnolia with the horse about 8 o'clock in the evening on the 5th of August, and, not having room in his stable, left her outside, and that she disappeared that night, and he did not see her again for several days. Albert King, a witness for the people, testified that he and the defendants, on or about the 8th of August, took the horse from the pasture of Mr. Kiggee. It will be observed that the statute provides several ways in which a larceny may be committed, and an information that charges in a single count that the defendant did all of the forbidden things, by employing the conjunction "and" where the statute uses "or," is good, and is supported by proof that the defendant committed the offense in any

of the ways specified. Bish. Directions & Forms, §§ 19, 21; Pettit v. People, 24 Colo. 517, 52 Pac. 676. Therefore, if it may be said, as contended by counsel for plaintiffs in error, that the evidence is not sufficient to show that the owner of the horse was deprived of its immediate possession, it is clearly sufficient to show that the larceny was committed in the manner first specified in the statute, to wit, by driving, leading, or riding away the animal.

It is further urged, in the original brief of counsel for plaintiffs in error, that there was a fatal variance between the allegations and the proof, in that the information charges the ownership of the horse in Frederick Sherwood, while the testimony shows that the animal belonged to one Sherwoof. Frederick Sherwood was called as a witness, and it appeared in the original bill of exceptions that the district attorney propounded to him the question: "Is your name Frederick Sherwoof? Ans. Yes, sir." It being evident, from an inspection of the record, that the mistake in the name was a typographical error, the district attorney, by leave of court, withdrew the bill of exceptions for the purpose of having this error corrected; which having been done, this objection is obviated.

The second assignment of error is based upon the overruling of the motion for a new trial. The motion for a new trial is not preserved in the bill of exceptions, and therefore is not before us for consideration. Anderson v. Sloan, 1 Colo. 33; Kurtz v. Simonton, Id. 70; Wike v. Campbell, 5 Colo. 126; Jordan v. People, 19 Colo. 417, 36 Pac. 218; Cochlin v. People, 93 Ill. 410; Edwards v. People, 26 Colo. 59 Pac. 56.

Counsel insist that the evidence was insufficient to support the verdict, and that the verdict was rendered under the influence of passion and prejudice; but no error is assigned upon this ground, and consequently these questions are not before us for determination. Nevertheless, we have examined the bill of exceptions, and find that it contains evidence sufficient to support the verdict; and, the credibility of witnesses being a matter exclusively for the jury to determine, we would not feel at liberty to disturb their verdict, even if the question was properly before

us.

The third and last ground relied on for reversal is that the trial judge absented himself from the court room during the closing argument of the district attorney, and that during such absence the district attorney used improper language in addressing the jury. The language that is alleged to have been improper is not preserved in the bill of exceptions. We are unable, therefore, to determine whether this objection is meritorious or not. The alleged absence of the judge from the court room consisted in his leaving the bench, and going into his room, which was but a few feet away; and is explained by the judge himself, in passing upon the motion

for new trial, as follows: "I will say, in regard to that part of the argument of the district attorney of which complaint is made by counsel for defendants, that while I stepped into my room here a few feet, stepping but a few feet away from my desk here, at the time counsel for the defendants interposed an objection to the remarks of the district attorney, that, aside from calling my attention to the statements made by Mr. Patton, he made no further reference to it, and did not except to the argument as made by the district attorney. The discussion

by the district attorney of the evidence in this case was perfectly fair. I heard every word spoken by him. No reference was made to the fact that the defendants were not placed upon the stand to testify.

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Consequently, I will say there is no justification for the sixth assignment of error in this case." From this statement of the court, it is obvious that, if counsel had taken the proper steps to present this objection, there is no foundation for this assignment of error. The absence of the judge from the bench was not such as would constitute reversible error. O'Brien v. People, 17 Colo. 561, 31 Pac. 230. Upon a careful inspection of the record before us, we are unable to find any error that would justify a reversal. The judgments of the court below are accordingly affirmed. Affirmed.

(13 Colo. App. 484)

SHAPTER v. ARAPAHOE COUNTY
COURT.

(Court of Appeals of Colorado. Nov. 13, 1899.) COURT OF APPEALS-JURISDICTION-SPECIAL

PROCEEDINGS.

Laws 1891, p. 119, which gives the court of appeals jurisdiction to review final judgments of all courts of record in all civil cases, does not give it jurisdiction of an appeal from an order of the county court appointing a conservator.

Petition by Edward Shapter for a writ of mandamus to compel the county court of Arapahoe county to allow an appeal from an order appointing a conservator for petitioner's estate. Denied.

R. T. McNeal and Wells, Taylor & Taylor, for petitioner. George A. Smith and Andrew W. Gillette, for respondent.

BISSELL, P. J. An application has been made by the petitioner for a peremptory writ of mandamus, to be addressed to the county court. From an order appointing a conservator of his estate, the petitioner prayed an appeal to this court, which was denied. He tendered a bond, which the court refused to file. He then petitioned this court for a writ of mandamus to compel the county court to allow his appeal and accept his bond. The alternative writ was issued. A demurrer was first filed, and thereafter answer tendered. The latter was attacked by motion. Doubtless much of it would have been necessarily stricken out, had we reach

ed any other conclusion than the one which we shall announce. Disregarding any irregularity or insufficiency in the pleading, we come directly to the question whether, on the application, the petitioner is entitled to his peremptory writ. An oral argument was ordered, and the question has been very fully discussed by counsel in briefs and at the bar. We are of the opinion it is a doubtful, and certainly a very debatable, proposition, whether this court, under the act constituting it, has power to issue the writ of mandamus, except in those cases of which we have obtained control, and where the writ applied for will be used for the sole and only purpose of aiding an already acquired appellate jurisdiction. The case wherein a conservator was appointed has never been filed in this court. The appeal has never been allowed, or the bond approved. It cannot therefore be rightly said we have acquired jurisdiction. Whether, in a case of which we undoubtedly had jurisdiction, and the party was denied the right of review, we would not then have authority to issue mandamus to enforce it, and compel the allowance of the appeal and the approval of the bond, we do not directly decide. It is a question which we prefer to leave open for decision in a case which necessitates its absolute determination. We are very clear the right of appeal does not exist in this case. The question has been substantially foreclosed by decisions of the supreme court. Lusk v. Kershow, 17 Colo. 481, 30 Pac. 62; Martin v. Simpkins, 20 Colo. 438, 38 Pac. 1092; Phillips v. Corbin (Colo. Sup.) 49 Pac. 279. According to those decisions, there is no right of appeal from final judgments rendered in county courts, except in those cases wherein it is directly provided by the act giving the jurisdiction and the remedy, or some other act which specifically grants the right to a review in some other tribunal. The learned court decided that the right of appeal from the county to the district court was directly limited to those actions or suits which were generically included within the term "civil actions." It disagreed with the construction which this court put on section 502 of the General Statutes of 1883, being section 1091, Mills' Ann. St. When the Phillips Case was before us, we held this statute permitted appeals from all final judgments. The supreme court, speaking by Mr. Justice Goddard, in what to me is a very persuasive opinion, held that this right of appeal was limited to the class of actions of which the county court was given jurisdiction in the first section of the act. I am inclined to the opinion that this interpretation is wholly justified by the general rules concerning statutory construction, and can be supported by strong reasons and conclusive arguments. We held the matter was concluded by the Martin Case in 20 Colo., and 38 Pac., which we followed. In that case this distinction was not noticed, nor was it brought to our attention in the

Phillips Case, and we did not consider it. However this may be, as we read the latter decision, there must be found within the statute providing a remedy a grant of the right of appeal to the tribunal which is claimed to have it, or, if it is not found in that act, it must be found in some other general act conferring appellate jurisdiction. The statute providing for the appointment of a conservator of the estates of lunatics has been in force ever since the Revised Statutes of 1868. It preceded the passage of the enactment giving jurisdiction to the county court, and otherwise providing for appeals from its judgments. It contains no provision for an appeal to any other tribunal. The proceeding is summary, though the issue is to be submitted to a jury. Without reviewing the many cases to which our attention has been called, it has been repeatedly held that appeals are statutory, unless there be constitutional provisions regulating them. With this principle no well-informed lawyer will contend. It is, and always has been, the law. It follows that there is no right of appeal in this case, unless it can be found in the statute creating this court. This is the act of 1891. Thereby the right to an appeal to the supreme court was abridged, and appeals allowed to the court of appeals. The phraseology of the statute conferring appellate jurisdiction on this court is somewhat peculiar. We had occasion to construe it with reference to the $100 clause in Livermore v. Truesdell, 7 Colo. App. 470, 43 Pac. 663. Therein we held, and held properly, that jurisdiction was granted to this court to review final judgments in civil actions, but not in all cases, as counsel construe the opinion. We find in the very language used a limitation which was based on the phraseology of the act creating the court. Referring to the case, it will be seen that we say we have jurisdiction to review final judgments in all "civil cases." This language does not necessarily include special proceedings. The court did not intend to decide otherwise; nor, as we read it, did we determine any other proposition. The limitation is exactly adapted to the provisions of section 4 of the act. Laws 1891, p. 119. Thereby this court is given jurisdiction to review final judgments of all courts of record in all civil cases, and in certain other cases which need not be referred to. It must be observed that the grant of jurisdiction to this court does not, ex vi termini, give us jurisdiction to review these special proceedings. We took jurisdiction in the Colfax annexation proceeding, to wit, the Phillips Case; for this precise question was not raised or suggested, nor was it considered by this court or by the supreme court on the appeal. It may be true we have taken jurisdiction in other special proceedings where our authority has not been questioned. But the limitation on our jurisdiction, except as to the one question of amount, has never before been the subject of direct

consideration by this court. Probably both the court and the profession were of the opinion that we had jurisdiction to review all final judgments rendered in all courts, and it is quite possible that we might not, before the Phillips Case, have made an exception, had the matter been directly presented. But, as the matter now stands, we must concede that the law of this jurisdiction is there must be a distinct grant of appellate power, and it may not be inferred from the terms of an act, unless essential to the exercise of the particular or general authority granted. The precise authority to review these judgments is not conferred by that act. The terms "civil actions," or "civil cases," or "actions at law and suits in equity," are thus construed in Phillips v. Corbin. We are therefore compelled to hold our jurisdiction limited by the term "civil actions" used in section 4, and, since no right of appeal or right to review is given in the act providing for the appointment of a conservator, we are without authority to hear and determine an appeal in such a case.

If

We do not hesitate to reach this conclusion, because it is very plain, from the Martin Case, that the petitioner is not without remedy, and may obtain a review of the proceedings. He may sue out a writ of error to the supreme court. It was preserved by a constitutional provision, and it is likewise preserved by the terms of the act creating this court. The right to apply to that court for mandamus is also unquestioned, and, notwithstanding the proceedings in this court, he may go into that tribunal, file his application for the writ, and obtain its opinion whether an appeal lies to this court. it does, a peremptory writ would issue to compel the county court to grant the appeal and approve the bond which has been tenered, it being in form and substance sufficient. Under these circumstances, we shall deny the writ and dismiss the application. We do it with an express reservation to the petitioner of the right to withdraw the papers in this court, if he be so advised, and with the right, so far as we are able to give it to him, to apply to the supreme court, either for a writ of mandamus or certiorari, or for a writ of error, as he may be advised. We put this reservation directly in the order, that it may not be urged that the petitioner is concluded by these proceedings. We are very anxious to preserve and protect any rights he may have, but, since we are of the opinion the appeal does not lie, we must deny the application. Application denied.

(13 Colo. App. 481)

DUNCAN v. BORDEN et al. (Court of Appeals of Colorado. Nov. 13, 1899.) TRIAL PROVINCE OF JURY-PRINCIPAL AND AGENT-APPEAL AND ERROR-BROKERS-INSTRUCTIONS.

1. A finding of fact on conflicting evidence, as to the relation of principal and agent, and the

reasonableness of an agent's charges, will not be disturbed on appeal.

2. Where the services for which a real-estate broker claims compensation were rendered by him, and were the procuring cause of a lease, the law favors that construction of the contract, if any, and that interpretation of the facts and acts of the parties, which will best secure to the broker payment of his commissions.

3. There is no prejudicial error in refusing an instruction which correctly states the law as to the liability of a real-estate owner to a broker who introduces to him a party with whom he subsequently consummates a trade, where the instruction given by the court fairly expresses the same rule.

4. An instruction that the broker must show a retainer, or that the principal accepted his agency and ratified his acts, is not prejudicial to the principal, although there is no evidence of ratification, where the jury are instructed as to what is necessary to constitute a ratification.

5. Where the plaintiff testified that he told the defendant what the commission would be for the lease of his property, but was silent as to what the commission was, and defendant says that the first claim plaintiff made was $350, plaintiff cannot recover a larger amount.

Appeal from district court, El Paso county. Action by M. P. Borden and another against James C. Duncan. Judgment for plaintiffs, and defendant appeals. Modified and affirmed.

Gunnell & Hamlin, for appellant. W. S. Morris, for appellees.

WILSON, J. The object of this suit, instituted by appellees, was to recover brokers' commissions alleged to have been earned by them in and about the leasing of certain real estate belonging to defendant, Duncan. The lease was of a town lot for a term of five years, the consideration being the payment of a monthly rental of $100 during said term, and the erection on the lot of a building to cost $3,000, which should at the termination of the lease become the property of the lessor, Duncan. The amount claimed for commission was $450, and the verdict of the jury and Judgment were in favor of plaintiffs.

The defendant raises and discusses three questions on this appeal. First, did the relation of principal and agent exist between appellant and appellees, such as would authorize the latter to claim compensation for services performed? Second, was the charge made by the appellees reasonable? Third, did the court err in refusing to give certain instructions asked by the appellant or in instructing the jury on the question of ratification? The first two questions may be easily disposed of upon the ground that they were matters of fact, to be submitted to, and determined by, the jury on the evidence. If they were so submitted, under proper instructions of the court as to the law, then the verdict, having been rendered upon conflicting evidence, as was the case, will not be disturbed by this court. The weight of the evidence seems to have supported the verdict as to the disputed facts. That the services for which plaintiffs claimed compensation were rendered by them, and that they were the procuring cause of the lease, was undisput

ed. In such case, the law favors that construction of the contract, if any, and that interpretation of the facts and acts of the parties, which will best secure to the broker or agent payment of his commissions. Finnerty v. Fritz, 5 Colo. 174.

The chief complaint of the defendant with reference to the instructions was the refusal of the court to instruct, in substance, that, when any real-estate broker asks and obtains from an owner the price at which he is willing to sell or lease the same, this, without more, does not establish the relation of principal and agent, nor will the fact that the defendant subsequently consummated a bargain with a party introduced by plaintiff create a liability. This correctly expressed the general rule of law as it has been announced by our supreme court. Castner v. Richardson, 18 Colo. 496, 33 Pac. 163. The instructions which the court did give, however, fairly expressed this rule to the jury, and, in fact, instruction No. 4 stated it in very positive terms, as follows: "To entitle the broker to commissions for his services, he must make it appear, by a fair preponderance of the evidence, that the services were rendered under an employment and retainer by the principal, or that the latter accepted his agency and ratified or adopted his acts. If he rendered the service as a mere volunteer, without any employment, express or implied, he cannot recover commissions." There was some evidence from which a ratification might be presumed, but in no event can we see how, under the facts disclosed, the defendant was prejudiced by what the court did say in reference to a liability being created by ratification. The court, in a subsequent instruction, stated, in very plain terms, the true rule as to when, and when only, a ratification of the unauthorized acts of an agent by the principal could take place. We do not see any material or prejudicial error in the instructions.

This case was presented and tried upon the theory that there was at no time any contract between the parties as to the amount of commissions that should be charged and received by the plaintiffs. In the course of the trial, however, it appeared from the testimony of Mr. Martin, one of the plaintiffs, that, after he and his partner had secured a lessee for the property upon the terms proposed, he went from Cripple Creek, where the property was situated and where plaintiffs were engaged in business, to Colorado Springs, where the defendant resided, for the purpose of reporting to defendant and consummating the deal; that he, upon that occasion, told the defendant what the transaction was, what the rents should be, and what the commission would be. The defendant, it appears, accepted the proposition,-at least, that was the legal effect of his subsequent acts,-and thereafter had the necessary papers made out, and turned them over to Mr. Martin, who carried them with him to Cripple Creek, had them signed, and the trade closed. Mr. Martin in his testimony does not seem to have testified what the

amount of this commission was, as stated by him to the defendant, but the defendant in his testimony states that the first claim of compensation which the plaintiffs made to him was of the sum of $350. This testimony was uncontradicted, and, as we view the case, the plaintiffs were in no event entitled to recover a larger amount. All that was done by the defendant in furtherance of this lease was subsequent to this statement made to him by Mr. Martin. If it be said that it was simply an offer, still, by the acts of the defendant, it was accepted, it became a contract between the parties, and the plaintiffs could not charge any more for their services. This being the only error, we do not consider it necessary to remand the cause. The judgment will be modified, and judgment entered in this court awarding the plaintiffs the sum of $350 and costs, the costs in this court to be taxed against the appellees. Judgment modified and affirmed.

(14 Colo. App. 43)

PEOPLE v. STITT.

(Court of Appeals of Colorado. Nov. 13, 1899.)
APPEAL AND ERROR-SUFFICIENCY OF BOND-
CARRIERS-LICENSES-VIOLATION
OF ORDINANCE.

1. Objection to the sufficiency of an appeal bond cannot be first raised on appeal.

2. One who does not hold himself out as a public carrier does not, by hauling goods under a special contract, violate an ordinance requir ing those carrying on the business of expressman or drayman to first procure a license.

Appeal from Rio Grande county court. Action by the people against L. F. Stitt to recover the penalty for violation of an ordinance of the town of Monte Vista. Judgment for defendant. The people appeal. Affirmed.

Charles M. Corlett, for the People. Ira J. Bloomfield, for appellee.

THOMSON, J. The following is an ordinance of the town of Monte Vista: "Whoever shall engage in or carry on the business for hire of expressman or cabman, drayman or public carrier, without first obtaining a license, and paying therefor the sum of $3 per month, shall upon conviction be fined in a sum not less than five dollars, nor more than fifty dollars: provided, this section shall not be construed to apply to those who hire a certain individual, firm or corporation to work for such employer exclusively by the week, month or year, and do not hold themselves out to serve the public." The town, charging the appellee with violating this ordinance, brought this action against him to recover the penalty. The suit was instituted in the police magistrate's court, and went thence to the county court, where judgment was given for the defendant. Plaintiff's counsel, in his argument, makes the point that the appeal bond filed with the police magistrate was for an insufficient amount. The sufficiency of the bond does not appear to have been questioned be

The

low, and it is too late to question it here. The defendant, a farmer, residing temporarily in Monte Vista, under a contract with a Mr. Bushinger, who was about to build a barn, and an addition to his house, hauled the rock, sand, and lumber required in the improvements. The rock and sand were brought from places outside of the town, and the lumber from the railroad depot, which was within the town. The contract price for the hauling was $21 per week, or $3.50 per day. A Mr. Eversole contracted with the defendant to haul a quantity of hay from his ranch outside of the town into the town, and to unload from the cars and haul four car loads of lumber. hauling of the lumber was to be done within the limits of the town. The defendant performed the contract. What he received for hauling the hay does not appear, but the contract price for unloading and hauling the lumber was 50 cents per 1,000 feet. We do not think the defendant was guilty of any violation of the ordinance. That was intended to apply to persons who offered their services to the public, and who were at the command of any citizen who desired to employ them. The defendant did not hold himself out as a carrier for the public. He did not invite employment from the public, and, doing certain specified work under a special contract, is not engaging in or carrying on a business, within the meaning of the ordinance. The judgment was right, and must be affirmed. Affirmed.

(14 Colo. App. 40)

YEAGER v. CLARK et al.

(Court of Appeals of Colorado. Nov. 13, 1899.) APPEAL-REVIEW.

A finding of the trial court will not be disturbed unless manifestly against the weight of the evidence, where based on conflicting testimony.

Appeal from district court, Dolores county. Action by Victor P. Yeager against John C. Clark and another. From a judgment for defendants, plaintiff appeals. Affirmed.

John Knowles, for appellant. S. R. Fitzgarrald and J. G. Price, for appellees.

WILSON, J. Appellant, who is the plaintiff in this cause, conveyed by deed to defendants an undivided one-sixth interest in and to the Mountain Spring lode mining claim, situate in Dolores county. The consideration recited in the deed was $2,500 cash, paid by defendants. The real consideration appears to have been that expressed in a written contract between the parties, executed contemporaneously with the delivery of the deed. This recited that the defendants expected in a reasonable time to start a tunnel on the Mountain Spring lode for the purpose of draining and working certain other mining property lying above and beyond said Mountain Spring claim. Then followed a provision to the effect that, if defendants should prosecute the proposed tunnel into the described mining property, and

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