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the legislature could operate to invalidate the issue of these original bonds. The question proposed is an abstract one, and is unnecessary to decide in the disposition of the case. Under the agreed facts, the injunction prayed for against the issuing of the bonds should be denied, and we so dvise the district court for Carbon county.

CONAWAY and POTTER, JJ., concur.

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(5 Wyo. 236)

STATE v. BOULTER. (Supreme Court of Wyoming. March 19, 1895.)

INFORMATION-OffexsE_VERIFICATION.

1. Under a statute providing that no information shall be filed for any felony until the person charged shall have had a preliminary examination and been held for trial, a prosecuting attorney can proceed by information only for the offense designated by the magistrate who holds the examination.

2. An information verified on information and belief by the prosecuting attorney does not of itself constitute "probable cause supported by affidavit," as provided by Const. art. 1, $ 4.

Error to district court, Laramie county; Richard H. Scott, Judge.

Information against Charles Boulter for murder in the first degree. From a sustaining of a plea in abatement to the information, the state brings error.

Affirmed. J. A. Van Orsdel and W. R. Stoll, for the State. R. E. Esteb, for defendant in error.

ed by law, before a Justice of the peace or other examining magistrate or officer, and shall have been held for trial by such court or officer, unless such person shall have waived his right to such examination: provided, however, that such Information may be filed without such examination against fugitives from justice." To the information filed under this state of facts, a plea in abatement was interposed, attacking the authority of the prosecuting attorney to prosecute by information for a higher degree of crime than that for which the accused was committed and held for trial by the committing magistrate. The prosecution claims the authority to do this, and cite a number of California cases in support of this authority. But the California cases do not sustain this view, but the reverse. By statutory provision in that state, the committing magistrate is required to take the testimony of each witness in case of homicide in writing as a deposition, and in other felonies when it is demanded by the prosecution or by defendant or by his attorney, and to certify such writ. ten testimony to the trial court. Without such demand, any felony, not a homicide, would go up without written testimony, The prosecuting attorney may then file bis information for such crime as is disclosed by these depositions in cases in which the testimony is taken and certified in writing. But, in cases where the testimony is not taken in writing, the supreme court of California announces the rule in these words: If the depositions are not returned, the district attorney must proceed by information for the offense designated by the magistrate, for the reason that there is no testimony on which he can exercise his judgment." People v. Lee Ah Chuck, 6 Pac. 859, 66 Cal. 662. So far as we can ascertain, the correctness of this proposition has not been questioned in any reported California decision. The California cases are in conflict with some points arising in cases of this kind, but none of them seem to sustain the position of the prosecution in the case at bar. The testimony is not required or even authorized to be taken in writing in Wyoming in any case. and, if the supreme court of California is correct in its view, the prosecuting attorney "must proceed by information for the offense designated by the magistrate."

A number of Michigan cases are cited on behalf of the plaintiff in error, but these cases are even more directly repugnant to the position of plaintiff in error than the California cases. The Michigan decisions do not permit the prosecuting attorney to decide what crime or what degree of crime he will file an Information for, although the testimony at the preliminary examination is required to be reduced to writing in all cases. A leading case in Michigan is that of Yaner v. People, 34 Mich. 286. This case is cited in a number of subsequent cases, and al. ways with approval. It was a prosecution

on

CONAWAY, J. An information charging defendant in error with the crime of murder in the first degree was filed in the district court on November 27, 1894. This information was verified by the county and prosecuting attorney information and belief. Prior to the filing of this information, a preliminary examination had been bad before a justice of the peace, on a complaint charging defendant in error with the crime of murder in the first degree. The result of this examination appears from the following entry in the docket of the justice, a transcript of which is part of the record: “And the court doth find as follows: From the evidence it appears that an offense has been committed, and there is probable cause to be lieve the defendant, Charles Boulter, guilty of murder in the second degree. It is therefore ordered by the court that the defendant, Charles Boulter, be held to answer said charge to the district court of Laramie county forthwith to the present term thereof, in the penal sum of five thousand (5,000) dollars."

Our statutes authorized the prosecution of crimes by information, but with the following restrictions as to felonies: “No information shall be filed against any person for any felony until such person shall have had a preliminary examination therefor, as provid.

by information for the crime of murder. by the committing magistrate, and may do There had been a preliminary examination so in different counts in proper cases. He is upon a complaint charging murder. The ac- not bound by any inaccurate language of the cused was held for trial, but the committing committing magistrate, but is bound to conmagistrate, a justice of the peace, declined to fine his prosecution to the same charge in decide whether the offense which had been substance designated by the committing committed was murder or manslaughter. A magistrate. See Brown v. People, 39 Mich. motion to quash the information was sustain- 37. ed on account of this fact. Speaking of the Statutes such as those of California and preliminary examination, the court says: Michigan were evidently not intended to pre"And it is only when it shall appear from vent an effective prosecution of criminals in such examination that an offense not cogniz- the district court by confining the prosecuting able by a justice of the peace has been com- attorney, in framing his information, to any mitted, and that there is probable cause to erroneous use of words, or even inadequate believe the prisoner guilty thereof, that he language, of the magistrate in his commit. can be held for trial. Comp. Laws 1871, 88 ment. On the other hand, the statute clearly 7859, 7860. The clear evident intent of this does not vest in the prosecuting attorney the statute was that the magistrate should exer- authority to determine for what crime he cise his best judgment in the matter; that will file his information. But in Wyoming, he should from the testimony determine the testimony taken by the examining magwhether the crime charged in the warrant istrate not being reduced to writing, there is had been committed; or where, as in this nothing upon which the prosecuting attorcase, the offense charged includes one or more ney may exercise his discretion or judgment. of lesser degree, the magistrate should deter- The commitment of the magistrate is all he mine which offense, if any, had been commit- has to act upon. The first legislature of the ted, so that the accused might not be placed state of Wyoming gave the prosecuting at. upon trial in the circuit to answer to a charge torney authority to file his information whendifferent or greater than the one on which he ever he was satisfied that a crime had been had been examined, and to answer which he committed in his county. Sess. Laws 1890 had been held for trial. If this were not so,

91, p. 215, 8 7. The second legislature took we should have the magistrate binding over away this authority. Sess. Laws 1893, p. H, for one offense, and the prosecuting attorney § 1. Another consideration that should not filing an information for another and differ- be overlooked is that the information is veri. ent one; or the magistrate binding over to fied by the prosecuting attorney on informaanswer to an offense of one degree, and the

tion and belief; and there is no finding or prosecuting attorney filing an information showing of probable cause to believe the defor a like offense of a higher degree." See fendant guilty of the degree of offense char. People v. Evans, 72 Mich. 387, 40 N. W. 473. ged. The information verified on information The Michigan cases are opposed to the theory

and belief does not of itself constitute "protthat the prosecuting attorney may decide able cause supported by affidavit." See Const. from the evidence taken on the preliminary Wyo. art. 1, $ 4; U. S. v. Bollman, 1 Cranch examination, or from any other considera- C. C. 373, Fed. Cas. No. 14,622; State v. tions, what offense or what degree of any Gleason, 32 Kan. 245, 4 Pac. 363. The offense he will prosecute for by his informa- knowledge of the prosecuting attorney is gention, although the testimony is reduced to erally founded on information and belief. In writing. The California and Michigan cas- the nature of things, he can have actual peres seem to be not in entire harmony; the sonal knowledge of but a small portion of the California cases holding that the prosecuting crime committed in his county. His informaattorney may consider the written testimony tion upon which his belief is founded is taken at the preliminary examination in de- sworn to by no one. No one is criminally liatermining what offense or what degree of ble if it should prove to be false and maliany offense he will prosecute for by his infor- cious. Such verification furnishes no safemation, and the Michigan supreme court guard against unfounded and vexatious arholding that he may not consider the written rests. testimony taken at the preliminary examina- The plea in abatement to the information tion in determining the question, but that he charging murder in the first degree was propis bound by the action of the committing erly sustained by the district court, because magistrate. In these states and in other (1) the committing magistrate did not hold states the prosecuting attorney will not be the accused for trial for that degree of of. bound by an imperfect designation of the fense; (2) the committing magistrate did not crime or degree of crime charged. It will find that there was probable cause to bebe sufficient if the crime charged in the in- lieve the accused guilty of that degree of of. formation is substantially the same as that fense. See, further, People v. Thompson, 24 for which the accused was held for trial, Pac. 384, 84 Cal. 598. The cases are generally to the effect that the prosecuting attorney may charge the crime GROESBECK, C. J., and POTTER, J., more fully and technically than it is chargea concur.

(6 Colo. App. 97)

be made only in cases of attachment, foreHANSCOM V. HANSCOM et al.

closure, claim and delivery, divorce, or other (Court of Appeals of Colorado. March 14, proceeding where specific property is to be 1895.)

affected, or the procedure is such as is known ACTION FOR ALIMONY-JURISDICTION OF EQUITY

as a proceeding in rem. To render a publicaCONVEYANCE IN FRAUD OF Wire

tion of summons effective for any purpose, it Power TO SET ASIDE,

must be made in one of the enumerated cases. 1. An action for alimony is a proceeding in But a judgment obtained upon this kind of rem, within the meaning of Code, $ 41, providing for service by publication in such proceedings.

service, except in case of divorce, binds only 2. A court of equity, independent of stat. the property brought within the jurisdiction ute, has jurisdiction to award alimony, even of the court. It does not authorize a general when no divorce is sought.

judgment against the defendant. A judg. 3. Where a husband, after having made fraudulent conveyances of his property to defeat

ment against him is allowed only upon his the rights of his wife, has absconded, a court voluntary appearance to the action, or upon of equity will, in an action by the wife for ali

actual service of summons in one of the ways mony, set aside such conveyances, and subject the property to a lien for the alimony award

prescribed by sections 38 and 40 of the Code. ed.

The theory of the complaint is that the plainError to district court, El Paso county.

tiff is entitled to a lien against the property

of her husband for the amount of alimony Action by Charlotte H. Hanscom against George G. Ilanscom and others. From a

which may be awarded her, and to a decree judgment dismissing the complaint, plaintiff

in the same proceeding enforcing the lien. If brings error. Reversed.

this theory is correct, the necessary prelim

inary proceedings having been had, service of Harry E. Wilson and Wells, Taylor & Tay

summons upon him was properly made by lor, for plaintiff in error. A. T. Gunnell, ami

publication. The enforcement of a lien is a cus curiae.

proceeding in rem, and in such proceeding

publication of the summons may be made, THOMSON, J. This is a suit for alimony. where service cannot be had otherwise, as The complaint contains allegations which, if to any or all of the parties against whom a true, would entitle the plaintiff to a divorce, decree is sought, or who must be before the but a divorce was not prayed. The com- court to enable it to grant the relief. Our plaint also avers fraudulent conveyances, statute concerning divorce and alimony promade by the defendant George G. Hanscom, vides that when a divorce is decreed the court the husband of plaintiff', to the defendants may make such order touching the alimony George B. Hanscom and Martin Van Nason, and maintenance of the wife as, from the cirof his real estate in Colorado, specifically de- cumstances of the parties, and the nature of scribing it, for the purpose of defeating any the case, shall be fit, and may enforce the claim of the plaintiff against him for alimony payment of the same in any manner consistor separate maintenance. The complaint fur- ent with the rules and practice of the court. ther alleges the transfer by him to George B. Sess. Laws 1889, p. 153. Under this broad Hanscom of his personal property, the with- and comprehensive language the court would drawal from bank of his money, amounting have the authority to adjudge the alimony to about $20,000, the taking of his promissory allowed to be a charge upon the land describnotes, mortgages, and other evidences of debt, ed in the bill, and to subject the land to its his flight from this state, and his continued payment. See Draper v. Draper, 68 nli. 17; absence therefrom; and concludes with a Wightman v. Wightman, 45 Ill. 167; O'Calprayer for alimony to be adjudged a lien up- laghan v. O'Callaghan, 69 Ill. 552. But the on the property described, and for a decree statute provides for alimony only in case a that the fraudulent conveyances be set aside, divorce is granted. We have no statute auand that such portion of the property as may thorizing the allowance of alimony except in be necessary to satisfy the judgment be sold connection with a divorce. This proceeding for that purpose. The principal defendant is for alimony alone, and therefore does not being absent from his domicile, and beyond come within the statute, so that, if it can the reach of the process of the court, upon be upheld, it must be in virtue of some genproper proceedings had, and affidavit execut- eral principle upon which a court of equity, ed, publication of summons was ordered and as such, is authorized to proceed. Following made in conformity with law. The court dis- the English decisions, the jurisdiction to de missed the complaint, for the reason, as it cree alimony as an independent relief has appears, that it considered itself without ju- been denied in many of our states; but in risdiction to render any judgment in the case, others, including this, a different doctrine has unless personal service of process was first been announced. In Daniels v. Daniels, 9 had upon George G. Hanscom.

The ques- Colo. 133, 10 Pac. 657, our supreme court tion submitted to us for determination is the held alimony to be within the jurisdiction of effect in this case of constructive service of courts of equity independently of the statute, summons upon the principal defendant. Sec- and to be a relief which might be granted, tion 41 of the Code specifies the conditions although no divorce was prayed. It may upon which service by publication may be therefore be considered as established in this allowed, and provides that publication sball state that upon a proper case made equity will award alimony, or separate maintenance, court will, in such case, for the purpose to a wife, in a proceeding where no divorce of avoiding confusion and a multiplicity of is sought. This seems to be conceded, but suits, afford complete relief, not only by liq. the contention, as we understand it, is that uidating the claim, but by removing all oba claim for alimony apart from divorce in- stacles fraudulently interposed to defeat it. volves only a personal liability against the In Halbert v. Grant, 4 T. B. Mon. 580, the husband, and cannot be made a charge upon court said: “The reason that the chancellor his property in the first instance; so that, requires a party possessing a claim purely for the purpose of subjecting his property to legal to proceed to execution at law is that its payment, a prior personal judgment must

1

he shall prove, by going the whole length, be obtained against him. Upon our first ex. that the law is inadequate to afford him reamination of the case our views coincided · dress, before he can call the chancellor to his with those of counsel. Our impression was aid. But where the claim asserted is purely that the court was without power, in this pro- equitable, and such as the chancellor will ceeding, to adjudge the amount which might take cognizance of in the first instance, he be awarded to the plaintiff to be a charge up- will at the same time go the entire extent, on specific property, and that, as the princi- and inquire into the obstructions in the road pal defendant had not been personally served of enforcing the demand. The complainant, with summons, so that no judgment could be therefore, when he goes to equity to assert rendered against him, the suit must fail; but and liquidate the claim, may at the same a more comprehensive and critical investiga- time combine with it a complaint against tion has led us to a different conclusion, and, the fraudulent acts of the debtor in attemptin view of the heartless conduct charged ing to place his estate beyond the reach of against him, and the serious hardship of the creditors, while he himself enjoys the recase if the plaintiff must be denied a remedy, sults." See, also, Waller v. Todd, 3 Dana, we have not formed the opinion which we 503; Bump, Fraud. Conv. 527. The claim of now entertain reluctantly.

the plaintiff in this case is not within the It is true, generally, that the holder of a cognizance of a court of law. It must be legal demand must reduce his claim to judg- asserted in equity. A reasonable amount ment against the debtor, and in some way for her maintenance during coverture, or unmake it a lien upon the property sought to

til reconciliation, estimated with reference be reached, before he can institute proceed

to the means of her husband, and payable ings to annul a conveyance made in fraud out of his estate, is the relief to which she is of his rights; but where the debtor has ab- entitled, if the case made by her complaint sconded, and cannot be reached by the proc

shall be established; and if, as is charged, ess of the court, leaving behind him prop- he has fraudulently disposed of his property erty, which, by reason of its situation or for the purpose of defeating her rights, and character, cannot be subjected to the pay- avoiding the obligation which the law imment of his liabilities in any proceeding at poses upon him of providing for her support, law, the creditor may resort to equity in the a court of equity, in virtue of the nature and first instance, and in the same proceeding extent of its jurisdiction, will, in the same have his claim established, charged against proceeding, adjudicate her claim, and remove the debtor's property, and all obstructions in the obstructions which he has fraudulently the way of its enforcement removed. It is put in the way of its enforcement. In Hinds peculiarly the province of a court of equity v. Hinds, 80 Ala. 225, the plaintiff, charging to afford a remedy where the law affords desertion and abandonment by her husband, none, and so, where the law is powerless to prayed a decree for alimony out of his esaid the creditor, by reason of the debtor's tate. Two persons, to whom it was alleged absence, and the situation of his property, he had fraudulently conveyed his property, equity will assume jurisdiction, adjudicate were made parties defendant, and appropriate the claim, and, by acting upon the property relief prayed against them. The defendants itself, adjust the rights of all parties to the demurred to the bill on the ground that it proceeding, and afford the appropriate relief. would not lie for alimony alone, and that Scott v. McWillen, 1 Litt. 302; Kipper v. there was a misjoinder of parties defendant. Glancey, 2 Blackf. 336; Peay v. Morrison's The decree of the chancellor overruling the Ex’rs, 10 Grat. 149; Pendleton v. Perkins, 49 demurrer was assigned for error. The suMo. 565; Farrar v. Haselden, 9 Rich. Eq. preme court held that, a wife's claim to ali. 331; Greenway v. Thomas, 14 Ill. 271; Kamp mony being an equitable demand against v. Kamp, 46 How. Pr. 143. In such a case her husband, she had the right to attack for the foundation of equitable jurisdiction is fraud any transfer or alienation of property the inability of the law to enforce a legal made by him with intent to defeat her demand, but where the debt or claim is claim, and that the fraudulent grantees were not legal, but equitable. the jurisdiction proper parties defendant to the suit. This does not depend upon adventitious facts, and decision is cited with approval in Daniels v. is not affected by the presence or absence Daniels, supra. The plaintiff seeks to charge of the defendant. The jurisdiction is orig- her husband's property with her alimony, and inal, and, in accordance with the prin- to set aside conveyances made in fraud of ciples governing proceedings in equity, the her rights. The suit is therefore a proceed

887

THATCHER 0. CRISMAN.

Colo.)

ing in rem, within the meaning of the stat. ; may draw after it. Conceiving that there
ute; and, the principal defendant being be- had been a breach of the covenants, Crisman
yond the jurisdiction of the court, so that brought the present suit, and stated five dif-
personal service of its process could not be ferent causes of action. In three of them the
had, it was proper to cause publication of breach was stated to consist of a 10 years'
the summons to be made, and by virtue of user by the public. This may be dismissed
such publication the court became invested from consideration, since no proof was offer-
with jurisdiction to render such judgment ed to support it. In the other two the plain-
against the property as the facts proven tiff averred (to state it generally) a breach of
might warrant. We think it was error to the various covenants contained in the deed,
dismiss the complaint, and the judgment other than the covenant against incumbran.
will be reversed. Reversed.

ces. The breach laid was the establishment
of a highway by the boards of county com-

missioners of Arapahoe and Jefferson coun(6 Colo. App. 49)

ties in 1874. In making his proof of the THATCHER et al. v. CRISMAN. proceedings of the Arapahoe county board (Court of Appeals of Colorado. March 11,

the plaintiff offered the report of the viewers 1895.)

and the order of the board. The order reESTABLISHMENT OF HIGHWAY-VALIDITY-COLLAT

cited the report, and its recommendation for ERAL ATTACK-DEFECTIVE PETITION-RECORD the payment of $62.50 to Mr. Zuloff for the OF PROCEEDINGS-PRESUMPTIONS.

right of way through his land. The county 1. Rev. St. 1868, c. 76, providing that all clerk was ordered to draw a warrant in favor roads shall be considered highways which have been or may be declared such by the legislature or

of “Zuloff, or the owner," and he was directthe county board, or have been so used that they ed to ascertain that person, and concluded would be regarded as highways under the com- with an order "that the road as located by mon law, was amended in 1874 by substituting a limitation of 10 years instead of the common-law

the viewers upon the petition of Richards et user, and again, in 1877, by striking out the 10

al. should be declared a public road” from year clause. Held, that these amendments did that date. The defendants strenuously obnot validate roads previously established by a

jected to the procedure, and insisted the county board not according to law.

2. A road established under an order of the plaintiff was bound to produce all the pacounty board which does not recite facts from pers connected with the matter, in order to which the jurisdiction of the board may be pre- show jurisdiction in the county board to act sumed, the petition shown in the record of the proceedings being signed by fewer persons than

in the premises. When it came to the prorequired by law, will not be presumed to be a

ceedings in Jefferson county, the plaintiff lawful highway.

offered the entire record, which included the 3. In an action for breach of covenants in a

various papers provided for by the statutes deed, the alleged breach being the establishment of a highway on the land by the county board,

then in force. No objection was made to this the production of the entire record of proceedings record, but just how far it bears on the presby the board, though part was produced by plain- ent controversy is not very clear. When tho tiff and the balance by the defendant, was not a collateral attack on such record.

defendants came to make their proof, they 4. Where the plaintiff, to prove a breach of

offered the balance of the Arapahoe county the covenants of a deed, has introduced in evi- record. The plaintiff objected to the proof, dence an order of the county board establishing

and the court excluded it, holding the order a highway on the land, the defendant may introduce the remainder of the record of the proceed

to be the only essential element of proof, and ings of the board to impeach the order.

the balance inadmissible, because it tended 5. Where the order of a county board estab- to controvert the validity of the order. The lishing a highway does not state that it was issued upon a petition duly signed, and the peti.

petition offered by the defendants must be as. tion shown in the record of proceedings in which

sumed to be the one on which the order the order was issued is not signed as required by | rested, since no other was produced. This law, no presumption of validity will be given to

petition was signed by only nine persons. It the order.

was filed in July, 1874, and followed in AuError to district court, Arapahoe county.

gust by the appointment of viewers, who filed Action by Obed Crisman against Joseph A.

their report in the October ensuing, when the Thatcher and Dennis Sullivan for breach of

board made the order which has been stated. covenants in a deed. From a judgment for

The plaintiff established the amount of lana plaintiff, defendants bring error. Reversed.

which was occupied by the road, the considRogers, Shafroth & Walling, for plaintiffs eration which he paid for the conveyances, in error. William Knapp, for defendant in and the relative value of what was taken. error.

Acting under the directions of the court, the

jury found a verdict for Crisman for $170.69, BISSELL, P. J. Obed Crisman

to reverse which the defendants have sued grantee under a deed with full covenants, ex- out a writ of error, and brought the case ecuted in November, 1888, by Sullivan and here. Thatcher. The property conveyed was lots The litigation involves several trouble101 and 102 in an addition to Cottage Hill, in some questions. One of the chief difficulties Arapahoe county. It was unimproved, and springs from the circumstance that the plainneither grantors nor grantee had other than tiff failed to make some proof which, accordthe cupatructive possession which the title ing to our view of the law, is indispensable.

was

а

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