Gen. Laws 1891, p. 121, § 15, relating to appeals from the court of appeals to the supreme court, provides that they shall be perfected in the same manner and under the same conditions as in cases brought from other courts. Code Civil Proc. § 389, relating to appeals from other courts, provides that appellant shall lodge in the supreme court clerk's office a copy of the record of the judgment appealed from by the third day of the next term of the supreme court, provided that, if there be not 30 days between the time of taking the appeal and sach term of the supreme court, then such copy shall be lodged in such clerk's office by the third day of the next succeeding term, or the appeal shall be dismissed, unless time has been granted by such court for good cause shown. Held that, where the transcript of record was not filed in the supreme court until nearly a year after making an appeal from the judgment of the court of appeals, and there was a term of the supreme court prior to such filing, and more than 30 days after the making of such appeal, the latter must be dismissed.

Appeal from court of appeals.

Action by L. C. Rockwell against the Highland Ditch Company on a contract for the delivery of water from defendant's reservoir. From the judgment of the court of appeals (29 Pac. Rep. 285) affirming a judgment dismissing the bill, plaintiff appeals. Dismissed.

L. C. Rockwell, for appellant. Carr & Secor, for appellee.

PER CURIAM. This appeal is from a judgment rendered by the court of appeals. The rights of the parties rest entirely upon contract. Under this contract appellee undertakes to deliver certain water at specified places. Appellant seeks by his action to compel the division of this water, and its delivery at places other than those specified in the contract. The water is from a certain reservoir, the property of appellee. No question in reference to the rights of appropriators of water from a natural stream is involved in the controversy. There is no contest in reference to the amount of water which appellee is to carry and deliver, the contest being solely with reference to the place and manner of delivery. The right to a review in this court is claimed on the ground that the controversy relates to a freehold. Appellee bases his motion to dismiss upon the laches of the defendant in bringing the record to this court, and also upon the

claim that the controversy does not relate to a freehold. As the appeal must be dismissed for the first reason assigned, a decision of the second ground is unnecessary. The judgment of the court of appeals was rendered on the 23d day of February, A. D. 1892. The appeal bond was filed and approved on the 7th day of April following. The transcript of record was not filed in this court until nearly a year thereafter, to wit, on the 29th day of March, A. D. 1893. It is well settled that an appeal is a creature of statute, and a party seeking to avail himself of the right conferred must comply with the statute in all substantial particulars. The statute governing appeals from the court of appeals to this court provides, inter alia: "Appeals shall be perfected and writ of error made a supersedeas in the same manner and under the same conditions as in cases brought from other courts." Gen. Laws 1891, p. 121, § 15. Section 389, Code Civil Proc., provides, in cases brought from other courts, that "the appellant shall lodge in the office of the clerk of the supreme court an authenticated copy of the record of the judgment or decree appealed from by or before the third day of the next term of said supreme court: provided, that if there be not thirty days between the time of making the appeal and the sitting of the supreme court, then the record shall be lodged, as aforesaid, at or before the third day of the next succeeding term of the supreme court; otherwise the said appeal shall be dismissed, unless further time shall have been granted by the supreme court for good cause shown." The next term of the supreme court after the making of this appeal began on the 11th day of April, A. D. 1892. As this was more than 30 days after the making of the appeal, the record should have been lodged in the court on or before the third day of such April term. It not having been filed within the time prescribed by the statute, the appeal must be dismissed.

(18 Colo. 489) SOUTHWESTERN LAND CO. v. HICKORY JACKSON DITCH CO. (Supreme Court of Colorado. May 29, 1893.) PLEADING AMENDMENT-JURISDICTIONAL AVER

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MENTS-CONDEMNATION PROCEEDINGS-Costs. 1. Where, in a proceeding before the county court, the petition fails to show that the amount involved is within the jurisdiction of the court, the petition may be amended on the trial by inserting the facts necessary to show such jurisdiction.

2. Mills' Ann. St. § 1721, providing that in condemnation proceedings any party may de mand a jury of freeholders to appraise the compensation to be allowed to the owner, is in contravention of Const. art. 2, § 15, which declares that the compensation shall be ascertained by commissioners, or by a jury, "when required by the owner of the property.'

3. Where the compensation allowed is less than the amount tendered the owner by petitioner, it is error to impose the costs of the proceeding on the owner.

Appeal from Conejos county court.

Proceeding by the Hickory Jackson Ditch Company to condemn a right of way for a ditch across lands owned by the Southwestern Land Company. Judgment was rendered on the verdict of a jury, awarding compensation,' and imposing costs on the landowner, and the owner appeals. Reversed.

The other facts fully appear in the following statement by GODDARD, J.:

The Hickory Jackson Ditch Company filed its petition in the county court of Conejos county to condemn a right of way for a ditch across certain lands of the Southwestern Land Company. The jurisdictional allegation therein contained is as follows: "That the value of the strip of land herein sought to be condemned and acquired is less than two thousand dollars." The clerk of the court, in pursuance of section 8 of "An act to provide for the exercise of the right of eminent domain," as amended in 1889, selected a jury as therein provided, issued a venire, directed to the sheriff of his county, commanding him to summon the twelve persons selected as jurors, which was accordingly done. Before the jury was impaneled the defendant moved to dismiss the complaint and the cause because the complaint or petition "failed to state facts sufficient

reason

* *

* * to give the court jurisdiction of the subject-matter of the action." This motion was overruled, and defendant excepted. The jury was then called, and before the jurors were sworn to answer questions the defendant objected to the impaneling of a jury, which objection was overruled, and exception taken. After the jury had been selected, defendant objected to the jury being sworn in the case at that time, and objected to the jury being impaneled in the case, which objections were overruled, and exception taken. And again, before taking testimony, defendant; by its attorney, objected to the admission of any testimony, for the that the jury had been improperly selected, impaneled, and sworn in the case," which objection was overruled, and exception taken. After the examination in chief of one witness, plaintiff's counsel asked leave to amend the petition by inserting the words, "nor would the damages, by reason of the construction of this ditch, to respondent's land, or to the Southwestern Land Company's land, exceed the sum of two thousand dollars." This amendment was allowed, over the objection of defendant's counsel, whereupon defendant's counsel moved for a continuance, which was denied. The complaint or petition was thereupon amended, by interlineation, by inserting the following: "And any and all damages to respondent's property." The trial of the cause was proceeded with, and resulted in a verdict for the petitioner, and an assessment of damages for the land actually taken in the sum of $400.80. Judgment was rendered in accordance with the verdict, and

against respondent for petitioner's costs, taxed at $796. From this judgment, respondent appeals.

Holbrook & Brown, for appellant. Eugene Engley, for appellee.

GODDARD, J., (after stating the facts.) The foregoing statement sufficiently presents the three more important questions involved in this controversy: First, the sufficiency of the petition to confer jurisdiction upon the county court to entertain the proceeding; second, the right to submit the question of compensation to a jury, over the objection of respondent; third, the validity of the judgment against respondent for petitioner's costs.

The petition originally filed was defective in not averring that the amount of damages, if any, to the residue of respondent's property, and the value of the strip of land sought to be taken, were within the jurisdiction of the county court; and counsel for respondent insist that, the jurisdictional averment being insufficient, the court had no power to grant leave to amend. With this we cannot agree. The defect might have been cured by amendment if the petition had been attacked by demurrer. By section 50 of the Code of Civil Procedure a want of jurisdiction of "the subject-matter of the action" is made a ground of demurrer. Section 74 provides that if a demurrer is sustained "the unsuccessful party shall plead over or amend upon such terms as shall be just." The motion to dismiss in this case upon the grounds stated was the equivalent of a demurrer, and we can perceive no reason why the amendment might not be made upon proper terms as well as upon demurrer. As amended, the jurisdictional averment was sufficient, and the court had jurisdiction of the subject-matter thereafter. The respondent continued to appear in the case, and to contest the right of petitioner to condemn its property on other grounds than want of jurisdiction, introduced evidence in support of its answer, and tried the issues joined upon their merits. We think the claim of the want of jurisdiction, as now presented, ought not to be sustained.

The action of the clerk in summoning, and the court in impaneling, a jury to ascertain the compensation to be awarded, was unwarranted. The eminent domain act, in so for as it provides for a jury upon request of any party other than the respondent,' is in contravention of the express terms of section 15, art. 2, of the bill of rights, which reads as follows: "That private property shall not be taken or damaged for public or private use without just compensation. Such compensation shall be ascertained by

'Mills' Ann. St. § 1721, provides that in conmnation proceedings any party may demand a jury of freeholders to appraise the compensation to be allowed.

a board of commissioners, of not less than three freeholders, or by a jury, when required by the owner of the property, in such manner as may be prescribed by law," etc. It appears from the record, not only that the jury was impaneled without the request of respondent, but against its consent, and over its repeated objections. This was clearly error.

The statute, while it allows no costs to a party to whom compensation shall be awarded, if the amount of such compensation shall not be in excess of any lawful tender made by petitioner before proceedings are com. menced, does not provide that he shall be liable for other costs, and, if it imposed this burden upon him, it would, in our opinion, be unconstitutional. It was error to impose the costs incurred by petitioner upon the respondent.

It is unnecessary to notice the other errors assigned, as those considered are decisive of the case, and compel a reversal of the judgment. Reversed.

1. Defendant, a real-estate agent, applied to plaintiff for a loan on certain property of M., furnishing an abstract of title. Defendant made out the mortgage and mortgage note, and undertook to attend to their execution. Upon the delivery by defendant of the instruments, apparently executed by M., plaintiff gave defendant her check, payable to defendant's order, for the amount of the loan. Defendant thereupon turned over to J., at whose suggestion the negotiation for the loan was undertaken, and through whom defendant acted in

securing M.'s apparent execution of the instruments, the proceeds of the check. Held, it appearing that M.'s signature to the note and mortgage was a forgery, that plaintiff was entitled to recover.

2. In such case plaintiff is not entitled to interest prior to the date of recovery. Railroad Co. v. Conway, 5 Pac. Rep. 142, 8 Colo. 1, followed.

Appeal from district court, Arapahoe county.

Action by Mary E. Thalheimer against Pettit & Co. From a judgment for plaintiff, defendant appeals. Affirmed.

C. E. & F. Herrington and Riddell, Starkweather & Dixon, for appellants. Wolcott & Vaile and Henry F. May, for appellee.

BISSELL, P. J. There is so little dispute concerning the facts of this controversy that there is substantially nothing for the court to do but to determine whether thereon a judgment ought to have been entered for the plaintiff. Of this there can be no question. The principal discussion tendered by the appellants in support of their contention that the case ought to be reversed is based upon the testimony contained in the record. What the court assumes to be the facts dis

closed by the record will be stated without argument, or attempt to justify the results deduced from the evidence of the witnesses. This will be ample to determine the rights of the parties, and a fuller history of the case would scarcely subserve the useful purpose of a precedent. Early in 1885, A. S. Pettit & Co. were dealers in real estate, and brokers who negotiated loans on various kinds of property. A brother of the appellee, Thalheimer, had suggested to Pettit & Co. that he could get money from his sister on good 10 per cent. real-estate loans if one should be offered them. This seems to have been the inception of the dealings between Henry Thalheimer, as the agent of his sister, Mary, and Pettit & Co. In the month of April, 1885, Pettit & Co. applied to Thalheimer for a loan on certain real estate in Denver belonging to Mrs. Electa Mills. In response to this application, Thalheimer called on Pettit & Co., discussed the terms of the loan, and subsequently visited the property, that he might exercise his individual judgment concerning the expediency of the loan. He was satisfied with the property, and Pettit & Co., furnished him an abstract of the title, which he submitted to a lawyer for examination. The title was satisfactory. It is now important to state the connection of one Joseph Pettit with the transaction. It would appear that he originally called on Pettit & Co. concerning the Ican to Mrs. Mills, and that it was through his suggestion that Pettit & Co. began the transaction. When the loan had been agreed on between Thalheimer and Pettit & Co., the brokers made out the security, and the note which was the evidence of debt, and evidently undertook to attend to their execution, either through themselves or Joseph Pettit, with whom they were dealing, and to present them in a completed form to Thalheimer, who would pay over the money when he got these instruments. There is a good deal of controversy in the case as to the relation which Joseph Pettit bore to the respective parties. It is enough to say that, whatever may have been his situation, Thalheimer was in no manner connected with him, and in no wise responsible for the part which he played in the transaction. On the 25th of April, 1885, the mortgage and the note, executed, apparently, by the borrower, Mrs. Mills, were given to Thalheimer by Pettit & Co., and he gave them a check, payable to their order, for the amount of the loan. They assumed the distribution of the money, and received it for the papers which they surrendered. This check which was thus delivered to Pettit & Co., payable to their order, was not indorsed by them to the order of the apparent borrower, Mrs. Mills, but, at the request of Joseph Pettit, was cashed by them, and they turned over the money to Joseph, less sundry sums in which he was indebted to a third party, Shepard, and to these brokers, by way of commissions, debts,

etc. Joseph took the money and left the country, and some months aiterwards, when Thalheimer notified Mrs. Mills that the interest was due, she repudiated the entire transaction, pronounced the signatures to the note and mortgage to be forgeries, declined to pay them, and instituted a suit to cancel the security, as a cloud upon her title. In that suit she was successful. The present action evidently waited on the conclusion of that, and then Mary Thalheimer brought it against Pettit & Co. to recover the amount of money which she had lost in the transaction, and recovered a judgment for the amount to which she was entitled, and interest on it from February 19, 1887, to the date of judgment.

So far as concerns the main recovery, this judgment is abundantly justified by the record. It cannot be successfully controverted that the case shows, in addition to what has already been stated, that Pettit & Co. acted on behalf of Mary Thalheimer in procuring the apparent execution by Mrs. Mills of the mortgage security and of the note which was the evidence of debt. Whatever their relations may have been originally to Mrs. Mills as negotiators of the loan, they assumed with reference to Mary Thalheimer, under the circumstances of this case, such a relation as compelled them to exercise reasonable care and prudence in the transaction of the business, so far as it related to the making of the instruments. It is undoubtedly clear that where such a relation is assumed, and the party is thereby charged with the duty of a prudent and careful execution of his trust, he is responsible to the loser, if by his negligence the party loaning the money is induced to part with it on the strength of invalid and worthless securities. Todd v. Bourke, 27 La. Ann. 385. The circumstances of the transaction justified Thalheimer in his reliance upon the brokers in procuring the instruments, and he rightfully assumed that they had exercised due care and caution in seeing that they were signed by the individual to whom the loan was ostensibly made. That Pettit & Co. were imposed upon by Joseph Pettit, through whom the business was done, affords them no defense. Undoubtedly that fact shows that their connection with the transaction was entirely free from suspicion and the stain of dishonesty, and that they were imposed upon by the man whom they trusted to transact the business on their behalf; but since he was their agent, and Thalheimer cannot be charged with his conduct or neglect, it is their misfortune that they must respond to the damages which Mary Thalheimer sustained.

In entering the judgment the court permitted the recovery of interest on the money paid at the rate of 8 per cent. from the 19th of February, 1887, to the date of the recovery. This part of the judgment cannot be sustained. Ever since the case of Railroad Co. v. Conway, 8 Colo. 1, 5 Pac. Rep. 142, it

has been settled that interest can only be recovered in this state in the cases enumerated in the statute. Wherever the plaintiff's right of action must take the form of a judgment for damages resulting from the wrong or negligence of a defendant, interest may not be included in a verdict, unless the case be brought within the principle laid down in Refining Co. v. Tabor, 13 Colo. 41, 21 Pac. Rep. 925. Since this is true, it is evident that there is nothing in the statutes regulating the matter of interest in this state which warrants the recovery of interest by the plaintiff. There are no other errors of sufficient gravity to require a discussion, or which, if sustained, would require a reversal of the case. The judgment will be modified by the deduction of the interest which was included in the judgment, and, as thus modified, the judgment will be affirmed.

(3 Colo. App. 366)

EATON et al. v. LARIMER & WELD RESERVOIR CO.

(Court of Appeals of Colorado. May 22, 1893.) INJUNCTION BOND-ACTION ON-DAMAGES.

A bond given to an incorporated reservoir company for whatever damage might be awarded through issue of an injunction against the distribution of water by the company does not include damage to individual stockholders for loss of crops, unless the company, through some valid contract made antecedently, may be obliged to make good the loss.

Appeal from district court, Weld county. Action by the Larimer & Weld Reservoir Company, a corporation, against Benjamin H. Eaton and Aaron S. Eaton. Judgment, from which defendants appeal. Reversed.

James W. McCreery, for appellants. H. N. Haynes, for appellee.

BISSELL, P. J. This action was brought to recover damages for the alleged breach of the conditions of a bond executed by the appellants under the terms of an order authorizing a writ of injunction to issue in a suit brought by Eaton and others against the Larimer & Weld Reservoir Company. At the time of the inception of this controversy the Larimer & Weld Canal Company owned and was operating a ditch for the distribution of water to the holders of water rights in a canal running through the counties of Larimer & Weld for a distance of some 50 miles. The Eatons were the owners of divers water rights in that ditch. Some time in the year 1890 a corporation was organized under the statute to construct some reservoirs for the detention of water to be subsequently distributed. It does not appear from the record whether all of the stockholders in that new company were the owners of lands along the line of the Larimer & Weld canal, or whether part of them were so situated and the balance simply stockholders for profit. However

this may be, the Larimer & Weld Reservoir Company, having been organized, constructed one or more reservoirs according to the purposes of their organization. One of them was called the "Terry Lake Reservoir," from which, in 1891, the reservoir company started the construction of an outlet ditch to connect the lake with the Larimer & Weld ditch, through which the stored water was to be distributed to such of the stockholders as owned lands along the line of the Larimer & Weld ditch below the outlet. Before completing the outlet and turning the water in, the reservoir company started proceedings in the county court of Weld county to condemn the Larimer & Weld ditch to the extent of permitting the reservoir company to distribute through its channel the stored waters in their lakes to the reservoir stockholders who were entitled thereto under their contracts with the reservoir company. The regularity, legality, and sulliciency of those proceedings in condemnation are not involved in the present suit. It is enough to say that thereunder such proceedings were had as culminated in an order of the court permitting the reservoir company to take possession of the Larimer & Weld ditch for the purposes described in their petition of condemnation on the deposit in court for the benefit of the ditch company of a specified sum of money. Thereupon the outlet into the ditch was cut, the reservoir waters turned into the canal, and the managers and directors of the reservoir company attempted to make their distribution a successful one to their stockholders by so regulating the head gates of the laterals leading from the Larimer & Weld ditch, and belonging to the holders of water rights in this ditch other than stockholders in the reservoir company, that the waters distributed in this way should be available and beneficial only to these latter stockholders. This naturally led to a controversy, and it would appear that the persons in charge of the reservoir interests attempted to protect their rights by a show, at least, of force, and it led to the bringing of a suit by Eaton, one of the appellants, and others, in the district court, to restrain the managers and directors of the reservoir company from in any wise interfering with the Larimer & Weld ditch, or using it for the purposes to which that company were endeavoring to acquire a right by the condemnation proceedings. The writ was ordered to issue on the filing of a bond with a specified penalty, and in the usual terms. The bond was filed, and contained this condition: "In case said injunction shall issue, the said plaintiffs will pay to the defendants all costs and damage which shall be awarded against the complainant in case the said injunction shall be modified or dissolved in whole or in part." Thereafter the reservoir company, which was the defendant in that suit, moved to dissolve the writ, and when the matter came

on for hearing before one of the judges in the district court in Denver the injunction was dissolved, and it was ordered by the judge that the action be dismissed without prejudice. So far as the present record discloses, that order was entered without objection, remains in full force and unmodified, and no steps have been taken to reverse it. This order was entered on the 15th of August, 1891, and on the 24th of October of the same year this suit was brought against the signers of the bond, Benjamin H. and Aaron S. Eaton. The complaint was in the ordinary form, alleged the corporate capacity of the plaintiffs, the bringing of the injunction suit, the issuance of the writ, the giving of the bond, the dissolution, and stated the damages sustained, and prayed judgment.

The appellants discuss but two of the assigned errors in their brief. The one relates to the time of the bringing of the suit, and the other to the rule laid down by the trial court for the assessment of damages. We do not perceive that the first contention is properly presented for our consideration. Whether, therefore, an action can be brought upon an injunction bond containing the expressed condition of the one in suit, and can be successfully maintained prior to a final determination of the original action, will be left unnoticed further than to say that, according to the present record, that case was dismissed by the order of the judge who dissolved the injunction, and the appellants in no manner during the trial of the present cause preserved the question relating to the right of the company to bring suit when it did. The other question is not so readily disposed of, since it is fairly presented to the court for determination. During the progress of the trial proof was offered which tended to show that the stockholders of the reservoir company had suffered large loss in the destruction and diminution of their crops for the want of water which they were unable to obtain because of the issuance of the writ against the reservoir company. While the objection to the testimony was very general, yet the court was directly requested to instruct the jury that the reservoir company could "recover no damages on account of any that may have been sustained by the individual stockholders." This the court refused to do, but it generally instructed the jury that they were entitled to take into consideration any damages sustained by the plaintiff and done to the crops because of the loss and nonreceipt of the water. It is true that the instruction given in general terms charged the jury that it was the company which was entitled to recover the damages resulting from the loss of crops, but that does not of itself remedy the difficulty, or remove the error which the court committed in refusing to give the charge which the defendants requested. Without attempting, by the processes of inclusion and exclusion, to