Gambar halaman
PDF
ePub

follows:

That

Rowe, of the ways specified. Bish. Directions & late of the county of Boulder and state of Forms, $$ 19, 21; Pettit v. People, 24 Colo. Colorado, on the 8th day of August, in the 517, 52 Pac. 676. Therefore, if it may be year of our Lord one thousand eight hundred said, as contended by counsel for plaintiffs in and ninety-eight, at and within the county error, that the evidence is not sufficient to and state aforesaid, one horse, of the per- show that the owner of the horse was deprivsonal goods, chattels, and property of Fred- ed of its immediate possession, it is clearly erick Sherwood, then and there being found, sufficient to show that the larceny was comdid then and there unlawfully and felonious- mitted in the manner first specified in the ly steal, take, lead, and drive away, and did statute, to wit, by driving, leading, or riding then and there unlawfully and feloniously de- away the animal. prive the said owner of the immediate pos- It is further urged, in the original brief of session thereof, and did then and there un- counsel for plaintiffs in error, that there was lawfully and feloniously apply the same to a fatal variance between the allegations and his own use, with intent to steal the same. the proof, in that the information charges the

The statute under which the in- ownership of the horse in Frederick Sherformations were drawn is as follows: "Any wood, while the testimony shows that the person who shall steal, embezzle or unlaw-animal belonged to one Sherwoof. Fredfully kill, sell, drive, lead or ride away, or erick Sherwood was called as a witness, and in any manner unlawfully deprive the owner it appeared in the original bill of exceptions of the immediate possession of any neat cat- that the district attorney propounded to him tle, horse, mule, sheep, goat, swine or ass, or the question: "Is your name Frederick Sherany person who shall steal, embezzle or un- woof? Ans. Yes, sir." It being evident, lawfully kill, sell, drive, lead or ride away, from an inspection of the record, that the or in any manner unlawfully apply to his mistake in the name was a typographical erown use any neat cattle, horse, mule, goat, ror, the district attorney, by leave of court, sheep, ass or swine, the owner of which is withdrew the bill of exceptions for the purunknown,

shall be deemed guilty pose of having this error corrected; which of larceny.

Sess. Laws 1891, p. having been done, this objection is obviated. 130. The cases were tried together, and de- The second assignment of error is based fendants were found guilty. Edward was upon the overruling of the motion for a new sentenced to a term of six years', and George trial. The motion for a new trial is not preto four years and six months', confinement served in the bill of exceptions, and therein the penitentiary. To reverse these sen- fore is not before us for consideration. Antences they bring the cases here on error. derson v. Sloan, 1 Colo. 33; Kurtz v. Simon

ton, Id. 70; Wike v. Campbell, 5 Colo. 126; S. T. Horn, for plaintiffs in error. David M.

Jordan v. People, 19 Colo. 417, 36 Pac. 218; Campbell, Atty. Gen., Calvin E. Reed, Asst.

Cochlin v. People, 93 Ill. 410; Edwards y. Atty. Gen., Dan B. Carey, Asst. Atty. Gen.,

People, 26 Colo. 59 Pac. 56. and Adam C. Patton, Dist. Atty., for the

Counsel insist that the evidence was insufPeople.

ficient to support the verdict, and that the

verdict was rendered under the influence of GODDARD, J. (after stating the facts). passion and prejudice; but no error is assignThe first error relied on for reversal is that ed upon this ground, and consequently these the court erred in denying the motion made questions are not before us for determination. at the conclusion of the people's testimony to Nevertheless, we have examined the bill of discharge defendants, for the reason that the exceptions, and find that it contains evievidence failed to prove that the horse was dence sufficient to support the verdict; and, taken from the possession of Sherwood. The the credibility of witnesses being a matter evidence upon this point was, in substance, exclusively for the jury to determine, we as follows: Mr. Sherwood, the owner of the would not feel at liberty to disturb their verhorse, testified that he arrived at Magnolia dict, even if the question was properly before with the horse about 8 o'clock in the evening Us. on the 5th of August, and, not having room The third and last ground relied on for rein his stable, left her outside, and that she versal is that the trial judge absented himdisappeared that night, and he did not see self from the court room during the closing her again for several days. Albert King, a argument of the district attorney, and that witness for the people, testified that he and during such absence the district attorney used the defendants, on or about the 8th of Au- improper language in addressing the jury. gust, took the horse from the pasture of Mr. The language that is alleged to have been Kiggee. It will be observed that the stat- improper is not preserved in the bill of exute provides several ways in which a larceny ceptio We are unable, therefore, to determay be committed, and an information that mine whether this objection is meritorious or charges in a single count that the defendant not. The alleged absence of the judge from did all of the forbidden things, by employing the court room consisted in his leaving the the conjunction "and" where the statute uses bench, and going into his room, which was "or,” is good, and is supported by proof that but a few feet away; and is explained by the the defendant committed the offense in any | judge himself, in passing upon the motion

a

[ocr errors]

for new trial, as follows: “I will say, in re- ed any other conclusion than the one which gard to that part of the argument of the dis- we shall announce. Disregarding any irtrict attorney of which complaint is made by regularity or insufficiency in the pleading, counsel for defendants, that while I stepped we come directly to the question whether, on into my room here a few feet, stepping but the application, the petitioner is entitled to a few feet away from my desk here, at the his peremptory writ. An oral argument was time counsel for the defendants interposed ordered, and the question has been very fully an objection to the remarks of the district discussed by counsel in briefs and at the bar. attorney, that, aside from calling my atten- | We are of the opinion it is a doubtful, and tion to the statements made by Mr. Patton, certainly very debatable, proposition, lie made no further reference to it, and did whether this court, under the act constitutnot except to the argument as made by the ing it, has power to issue the writ of mandistrict attorney.

The discussion damus, except in those cases of which we have by the district attorney of the evidence in this obtained control, and where the writ applied case was perfectly fair. I heard every word for will be used for the sole and only purpose spoken by him. No reference was made to of aiding an already acquired appellate juristhe fact that the defendants were not placed diction. The case wherein a conservator was upon the stand to testify.

Conse- appointed has never been filed in this court. quently, I will say there is no justification for The appeal has never been allowed, or the the sixth assignment of error in this case." | bond approved. It cannot therefore be rightFrom this statement of the court, it is ob- ly said we have acquired jurisdiction. vious that, if counsel had taken the proper Whether, in a case of which we undoubtedly steps to present this objection, there is no had jurisdiction, and the party was denied foundation for this assignment of error. The the right of review, we would not then have absence of the judge from the bench was authority to issue mandamus to enforce it, not such as would constitute reversible error. and compel the allowance of the appeal and O'Brien v. People, 17 Colo. 561, 31 Pac. 230. the approval of the bond, we do not directly Upon a careful inspection of the record before decide. It is a question which we prefer to us, we are unable to find any error that would leave open for decision in a case which ne. justify a reversal. The judgments of the cessitates its absolute determination. We court below are accordingly affirmed. Af- are very clear the right of appeal does not firmed.

exist in this case. The question has been

substantially foreclosed by decisions of the (13 Colo. App. 484)

supreme court. Lusk v. Kershow, 17 Colo.

481, 30 Pac. 62; Martin v. Simpkins, 20 Colo. SHAPTER V. ARAPAHOE COUNTY

438, 38 Pac. 1092; Phillips v. Corbin (Colo. COURT.

Sup.) 49 Pac. 279. According to those deci(Court of Appeals of Colorado. Nov. 13, 1899.)

sions, there is no right of appeal from final COURT OF APPEALS-JURISDICTION-SPECIAL PROCEEDINGS.

judgments rendered in county courts, except Laws 1891, p. 119, which gives the court of in those cases wherein it is directly provided appeals jurisdiction to review final judgments by the act giving the jurisdiction and the of all courts of record in all civil cases, does not

remedy, or some other act which specifically give it jurisdiction of an appeal from an order of the county court appointing a conservator.

grants the right to a review in some other

tribunal. The learned court decided that the Petition by Edward Shapter for a writ of

right of appeal from the county to the dismandamus to compel the county court of

trict court was directly limited to those acArapahoe county to allow an appeal from an

tions or suits which were generically includorder appointing a conservator for petition

ed within the term "civil actions.” It diser's estate. Denied.

agreed with the construction which this R. T. McNeal and Wells, Taylor & Taylor, court put on section 502 of the General Statfor petitioner. George A. Smith and Andrew utes of 1883, being section 1091, Mills' Ann. W. Gillette, for respondent.

St. When the Phillips Case was before us,

we held this statute permitted appeals from BISSELL, P. J. An application has been all final judgments. The supreme court, made by the petitioner for a peremptory writ speaking by Mr. Justice Goddard, in what to of mandamus, to be addressed to the county me is a very persuasive opinion, held that court. From an order appointing a conserva- this right of appeal was limited to the class tor of his estate, the petitioner prayed an of actions of which the county court was appeal to this court, which was denied. He given jurisdiction in the first section of the tendered a bond, which the court refused to act. I am inclined to the opinion that this file. He then petitioned this court for a interpretation is wholly justified by the genwrit of mandamus to compel the county eral rules concerning statutory construction, court to allow his appeal and accept his bond. and can be supported by strong reasons and The alternative writ was issued. A demur- conclusive arguments. We held the matter rer was first filed, and thereafter answer was concluded by the Martin Case in 20 tendered. The latter was attacked by mo- Colo., and 38 Pac., which we followed. In tion. Doubtless much of it would have that case this distinction was not noticed, been necessarily stricken out, had we reach- nor was it brought to our attention in the Phillips Case, and we did not consider it. consideration by this court. Probably both However this may be, as we read the latter the court and the profession were of the decision, there must be found within the stat- opinion that we had jurisdiction to review all ute providing a remedy a grant of the right final judgments rendered in all courts, and of appeal to the tribunal which is claimed to it is quite possible that we might not, before have it, or, if it is not found in that act, it the Phillips Case, have made an exception, must be found in some other general act had the matter been directly presented. But, conferring appellate jurisdiction. The stat- as the matter now stands, we must concede ute providing for the appointment of a con- that the law of this jurisdiction is there must servator of the estates of lunatics has been be a distinct grant of appellate power, and in force ever since the Revised Statutes of it may not be inferred from the terms of an 1868. It preceded the passage of the enact- act, unless essential to the exercise of the ment giving jurisdiction to the county court, particular or general authority granted. The and otherwise providing for appeals from its precise authority to review these judgments judgments. It contains no provision for an is not conferred by that act. The terms appeal to any other tribunal. · The proceed-civil actions," or "civil cases," or "actions ing is summary, though the issue is to be at law and suits in equity,” are thus consubmitted to a jury. Without reviewing the strued in Phillips v. Corbin. We are theremany cases to which our attention has been fore compelled to hold our jurisdiction limcalled, it has been repeatedly held that ap- ited by the term "civil actions" used in secpeals are statutory, unless there be constitu- tion 4, and, since no right of appeal or right tional provisions regulating them. With this to review is given in the act providing for principle no well-informed lawyer will con- the appointment of a conservator, we are tend. It is, and always has been, the law. without authority to hear and determine an It follows that there is no right of appeal appeal in such a case. in this case, unless it can be found in the We do not hesitate to reach this conclustatute creating this court. This is the act sion, because it is very plain, from the Marof 1891. Thereby the right to an appeal to tin Case, that the petitioner is not without the supreme court was abridged, and appeals remedy, and may obtain a review of the proallowed to the court of appeals. The phrase- ceedings. He may sue out a writ of error to ology of the statute conferring appellate ju- the supreme court. It was preserved by a risdiction on this court is somewhat peculiar. constitutional provision, and it is likewise We had occasion to construe it with refer- preserved by the terms of the act creating ence to the $100 clause in Livermore V. this court. The right to apply to that court Truesdell, 7 Colo. App. 470, 43 Pac. 663. for mandamus is also unquestioned, and, Therein we held, and held properly, that notwithstanding the proceedings in this jurisdiction was granted to this court to re- court, he may go into that tribunal, file his view final judgments in civil actions, but not application for the writ, and obtain its opinin all cases, as counsel construe the opinion. ion whether an appeal lies to this court. If We find in the very language used a limita- it does, a peremptory writ would issue to tion which was based on the phraseology of compel the county court to grant the appeal the act creating the court. Referring to the and approve the bond which has been tencase, it will be seen that we say we have ered, it being in form and substance suffijurisdiction to review final judgments in all cient. Under these circumstances, we shall "civil cases." This language does not nec- deny the writ and dismiss the application. essarily include special proceedings. The We do it with an express reservation to the court did not intend to decide otherwise; petitioner of the right to withdraw the panor, as we read it, did we determine any pers in this court, if he be so advised, and other proposition. The limitation is exactly with the right, so far as we are able to give adapted to the provisions of section 4 of the it to him, to apply to the supreme court, act. Laws 1891, p. 119. Thereby this court either for a writ of mandamus or certiorari, is given jurisdiction to review final judg- or for a writ of error, as he may be advised. ments of all courts of record in all civil cases, We put this reservation directly in the order, and in certain other cases which need not be that it may not be urged that the petitioner referred to. It must be observed that the is concluded by these proceedings. We are grant of jurisdiction to this court does not, very anxious to preserve and protect any ex vi termini, give us jurisdiction to review rights he may have, but, since we are of the these special proceedings. We took jurisdic- opinion the appeal does not lie, we must deny tion in the Colfax annexation proceeding, to the application. Application denied. wit, the Phillips Case; for this precise question was not raised or suggested, nor was it considered by this court or by the supreme

(13 Colo. App. 481) court on the appeal. It may be true we have

DUNCAN v. BORDEN et al. taken jurisdiction in other special proceed- (Court of Appeals of Colorado. Nov. 13, 1899.) ings where our authority has not been ques- TRIAL-PROVINCE OF JURY-PRINCIPAL AND tioned. But the limitation on our jurisdic

AGENT-APPEAL AND ERROR-BRO

KERS-INSTRUCTIONS. tion, except as to the one question of amount,

1. A finding of fact on conflicting evidence, as has never before been the subject of direct to the relation of principal and agent, and the reasonableness of an agent's charges, will not be ed. In such case, the law favors that construcdisturbed on appeal,

tion of the contract, any, and that interpre2. Where the services for which a real-estate broker claims compensation were rendered by

tation of the facts and acts of the parties, him, and were the procuring cause of a lease, the

which will best secure to the broker or agent law favors that construction of the contract, if payment of his commissions. Finnerty V. any, and that interpretation of the facts and

Fritz, 5 Colo. 174. acts of the parties, which will best secure to the broker payment of his commissions.

The chief complaint of the defendant with 3. There is no prejudicial error in refusing an reference to the instructions was the refusal of instruction which correctly states the law as to

the court to instruct, in substance, that, whea the liability of a real-estate owner to a broker who introduces to him a party with whom he

any real-estate broker asks and obtains from subsequently consummates a trade, where the an owner the price at which he is willing to instruction given by the court fairly expresses sell or lease the same, this, without more, does the same rule.

not establish the relation of principal and 4. An instruction that the broker must show a retainer, or that the principal accepted bis agen

agent, nor will the fact that the defendant cy and ratified his acts, is not prejudicial to the subsequently consummated a bargain with a principal, although there is no evidence of ratifi- party introduced by plaintiff create a liability. cation, where the jury are instructed as to what is necessary to constitute a ratification.

This correctly expressed the general rule of 5. Where the plaintiff testified that he told

law as it has been announced by our supreme the defendant what the commission would be court. Castner v. Richardson, 18 Colo. 496, for the lease of his property, but was silent as 33 Pac. 163. The instructions which the court to what the commission was, and defendant says that the first claim plaintiff made was $350,

did give, however, fairly expressed this rule to plaintiff cannot recover a larger amount.

the jury, and, in fact, instruction No. 4 stated

it in very positive terms, as follows: "To entiAppeal from district court, El Paso county.

tle the broker to commissions for his services, Action by M. P. Borden and another against James C. Duncan. Judgment for plaintiffs,

he must make it appear, by a fair preponderand defendant appeals.

ance of the evidence, that the services were Modified and af

rendered under an employment and retainer firmed.

by the principal, or that the latter accepted his Gunnell & Hamlin, for appellant. W. S.

agency and ratified or adopted his acts. If he Morris, for appellees.

rendered the service as a mere volunteer, with

out any employment, express or implied, he WILSON, J. The object of this suit, insti- cannot recover commissions." There was tuted by appellees, was to recover brokers' some evidence from which a ratification might commissions alleged to have been earned by be presumed, but in no event can we see how, them in and about the leasing of certain real | under the facts disclosed, the defendant was estate belonging to defendant, Duncan. The prejudiced by what the court did say in reflease was of a town lot for a term of five erence to a liability being created by ratificayears, the consideration being the payment of tion. The court, in a subsequent instruction, a monthly rental of $100 during said term, and stated, in very plain terms, the true rule as to the erection on the lot of a building to cost when, and when only, a ratification of the un$3,000, which should at the termination of the authorized acts of an agent by the principal lease become the property of the lessor, Dun- could take place. We do not see any material can. The amount claimed for commission or prejudicial error in the instructions. was $450, and the verdict of the jury and This case was presented and tried upon the Judgment were in favor of plaintiffs.

theory that there was at no time any contract The defendant raises and discusses three between the parties as to the amount of comquestions on this appeal. First, did the rela- missions that should be charged and received tion of principal and agent exist between ap- by the plaintiffs. In the course of the trial, pellant and appellees, such as would authorize however, it appeared from the testimony of the latter to claim compensation for services Mr. Martin, one of the plaintiffs, that, after he performed? Second, was the charge made by and his partner had secured a lessee for the the appellees reasonable? Third, did the court property upon the terms proposed, he went err in refusing to give certain instructions ask- from Cripple Creek, where the property was ed by the appellant or in instructing the jury situated and where plaintiffs were engaged in on the question of ratification? The first two business, to Colorado Springs, where the dequestions may be easily disposed of upon the fendant resided, for the purpose of reporting ground that they were matters of fact, to be to defendant and consummating the deal; that submitted to, and determined by, the jury on he, upon that occasion, told the defendant the evidence. If they were so submitted, un- what the transaction was, what the rents der proper instructions of the court as to the should be, and what the commission would law, then the verdict, having been rendered be. The defendant, it appears, accepted the upon conflicting evidence, as was the case, will proposition,-at least, that was the legal effect not be disturbed by this court. The weight of of his subsequent acts,-and thereafter had the evidence seems to have supported the ver- the necessary papers made out, and turned dict as to the disputed facts. That the serv- them over to Mr. Martin, who carried them ices for which plaintiffs claimed compensation with him to Cripple Creek, bad them signed, were rendered by them, and that they were and the trade closed. Mr. Martin in his testithe procuring cause of the lease, was undisput- mony does not seem to have testified what the

amount of this commission was, as stated by , low, and it is too late to question it here. The him to the defendant, but the defendant in his defendant, a farmer, residing temporarily in testimony states that the first claim of com- Monte Vista, under a contract with a Mr. pensation which the plaintiffs made to him Bushinger, who was about to build a barn, was of the sum of $330. This testimony was and an addition to his house, hauled the rock, uncontradicted, and, as we view the case, the sand, and lumber required in the improveplaintiffs were in no event entitled to recover a ments. The rock and sand were brought from larger amount. All that was done by the de- places outside of the town, and the lumber fendant in furtherance of this lease was subse- from the railroad depot, which was within the quent to this statement made to him by Mr. town. The contract price for the hauling was Martin. If it be said that it was simply an $21 per week, or $3.50 per day. A Mr. Everoffer, still, by the acts of the defendant, it sole contracted with the defendant to haul a was accepted, it became a contract between quantity of hay from his ranch outside of the the parties, and the plaintiffs could not charge town into the town, and to unload from the any more for their services. This being the cars and haul four car loads of lumber. The only error, we do not consider it necessary to hauling of the lumber was to be done within remand the cause. The judgment will be the limits of the town. The defendant permodified, and judgment entered in this court formed the contract. What he received for awarding the plaintiffs the sum of $350 and hauling the hay does not appear, but the concosts, the costs in this court to be taxed against tract price for unloading and hauling the lumthe appellees. Judgment modified and af- ber was 50 cents per 1,000 feet. We do not firmed.

think the defendant was guilty of any violation of the ordinance. That was intended to

apply to persons who offered their services to (14 Colo. App. 43)

the public, and who were at the command of PEOPLE v. STITT.

any citizen who desired to employ them. The (Court of Appeals of Colorado. Nov. 13, 1899.)

defendant did not hold himself out as a carrier APPEAL AND ERROR-SUFFICIENCY OF BOND

for the public. He did not invite employment CARRIERS-LICENSES-VIOLATION

from the public, and, doing certain specified OF ORDINANCE.

work under a special contract, is not engaging 1. Objection to the sufficiency of an appeal in or carrying on a business, within the meanbond cannot be first raised on appeal. 2. One who does not hold himself out as a

ing of the ordinance. The judgment was right, public carrier does not, by hauling goods under and must be affirmed. Affirmed. a special contract, violate an ordinance requiring those carrying on the business of expressman or drayman to first procure a license.

(14 Colo. App. 40) Appeal from Rio Grande county court.

YEAGER v. CLARK et al. Action by the people against L. F. Stitt to

(Court of Appeals of Colorado. Nov. 13, 1899.) recover the penalty for violation of an ordi

APPEALREVIEW. nance of the town of Monte Vista. Judgment

A finding of the trial court will not be disfor defendant. The people appeal. Affirmed. turbed unless manifestly against the weight of Charles M. Corlett, for the People. Ira J.

the evidence, where based on conflicting testi

mony. Bloomfield, for appellee.

Appeal from district court, Dolores county.

Action by Victor P. Yeager against John C. THOMSON, J. The following is an ordi

Clark and another. From a judgment for denance of the town of Monte Vista: “Whoever

fendants, plaintiff appeals. Affirmed. shall engage in or carry on the business for hire of expressman or cabman, drayman or John Knowles, for appellant. S. R. Fitzpublic carrier, without first obtaining a license, garrald and J. G. Price, for appellees. and paying therefor the sum of $3 per month, shall upon conviction be fined in a sum not WILSON, J. Appellant, who is the plainless than five dollars, nor more than fifty dol- tiff in this cause, conveyed by deed to defendlars: provided, this section shall not be con- ants an undivided one-sixth interest in and to strued to apply to those who hire a certain the Mountain Spring lode mining claim, situindividual, firm or corporation to work for ate in Dolores county. The consideration resuch employer exclusively by the week, month cited in the deed was $2,500 cash, paid by deor year, and do not hold themselves out to fendants. The real consideration appears to serve the public." The town, charging the have been that expressed in a written contract appellee with violating this ordinance, brought between the parties, executed contemporanethis action against him to recover the penalty. ously with the delivery of the deed. This re The suit was instituted in the police magis- cited that the defendants expected in a reatrate's court, and went thence to the county sonable time to start a tunnel on the Mountain court, where judgment was given for the de- Spring lode for the purpose of draining and fendant. Plaintiff's counsel, in his argument, working certain other mining property lying makes the point that the appeal bond filed above and beyond said Mountain Spring claim. with the police magistrate was for an insuffi- Then followed a provision to the effect that, if cient amount. The sufficiency of the bond defendants should prosecute the proposed tundoes not appear to have been questioned be- nel into the described mining property, and

« SebelumnyaLanjutkan »