tiff filed general denial, and specifically denied the allegation that at the time of the execution and delivery of plaintiff's mortgage Newell advised him of the existence of the note and mortgage described in the cross complaint; and also specifically denied that he then or theretofore had knowledge or means of knowledge from any of said defendants, or from any other source whatever, of said mortgage. Newell filed no answer to Porter's cross complaint. Upon these pleadings Porter moved for judgment, which was denied. The cause coming on for trial, the court of its own motion summoned a jury of 12 to try the question of fact whether Grady, at the time of taking his mortgage, had knowledge of the existence of the mortgage theretofore given to Porter. The jury refused to deliver up the verdict until their fees had been paid. Both parties refusing to pay the fees, the jury was discharged, and the court, upon the evidence introduced, found that the plaintiff did not have knowledge of the existence of the Porter mortgage at the time of the execution and delivery of the mortgage to him, and ordered "that all costs occasioned by the said James R. Porter's cross bill herein be taxed to the said James R. Porter, including the jury fee herein, and that the cross bill be dismissed." The journal entry further recites that "this cause coming on to be heard as between the said J. Douglas Grady, plaintiff herein, and Wickliff Newell, defendant, the defendant Wickliff Newell made default, and the court orders that judgment

be rendered against Wickliff Newell, and in favor of J. Douglas Grady, for the sum of $635.91, and attorney's fees taxed at $80.25, and all costs, * and that the mortgage herein foreclosed be decreed to be the prior and superior lien, * and the property sold, and that special execution issue for the sale of said property, and that general execution issue for any balance."

Rogers & Stair, for plaintiff in error. Muntzing & Barnes and W. E. Beck, for defendant in error.

GODDARD, J. (after stating the facts). The evidence introduced upon the trial was not preserved by a bill of exceptions, and our review is therefore limited to the record proper. The foregoing statement sufficiently presents the rulings upon which error is assigned. These may be summarized under three heads: First, that the court erred in denying motion for judgment upon the pleadings; second, in dismissing the counterclaim; third, in summoning a jury of 12 on its own motion, to try the issue of fact. In support of the first proposition, it is contended by plaintiff in error that the specific denials in the replication to his cross complaint limited the general denial, and, being in themselves insufficient to put in issue the question of

This claim we think is without merit. The specific denials in no sense admit any fact alleged in the complaint, and, while unnecessary, they were not inconsistent with the general denial, nor did they in any manner limit its force or effect. The question of notice was put in issue by the pleadings, and the motion for judgment thereon was properly denied. The testimony introduced upon the trial not having been preserved by a bill of exceptions, we must assume that the evidence was sufficient to sustain the finding of the court below that Grady's mortgage was a prior lien to that of Porter. The second objection is well taken. It is clear that the court erred in dismissing the cross complaint. The plaintiff in error was entitled thereon to relief against his codefendant, Newell, and to have his mortgage adjudged a second lien upon the real estate in question, and to have the surplus, if any, derived from its sale, after satisfying the prior lien of defendant in error, applied towards the satisfaction of his claim.

It is unnecessary to discuss the third question presented, since the right of the court to call a jury to answer questions of fact in chancery cases is too well settled to admit of controversy; and we know of no rule that limits the court in calling a full jury for that purpose; and, furthermore, the verdict of the jury in such case being merely advisory, the court may disregard it, and decide the issue of fact for itself, on the evidence produced. The judgment must be reversed, and the cause remanded, with directions to the court below to reinstate the cross complaint of plaintiff in error, and to grant him the relief he is entitled to thereon as against his codefendant, Newell, and decree to him the surplus, if any, derived from the sale of the mortgaged premises, after satisfying therefrom the prior lien of defendant in error. The plaintiff in error having failed to make Newell a party to the proceeding, and the defendant in error being entitled to the de cree in his favor, the cost in this court must be assessed against plaintiff in error. Reversed and remanded.

1. A bill of exceptions embracing the testimony as prepared by the appellant's private stenographer is a sufficient compliance with Code 1887, § 385, and it is error for the court to refuse to sign and seal it because of its not having been prepared by the official stenographer, where the appellee neglects, upon the appellant's suggestion, to file counter affidavits to those filed in support of the bill.

2. A motion to dismiss the appellant's bill of exceptions because not properly prepared will be denied where it is not insisted upon until six months after submission of the case, and after the parties have filed their respective briefs.

Appeal from district court, Otero county. Action between A. E. Reynolds and Mary B. Campling. From the judgment, Reynolds appeals. Motion to strike out bill of exceptions. Overruled.

The appellee moves to strike the bill of exceptions from the files in this case. It appears that within the time fixed by the court for the filing of the bill of exceptions the appellant tendered to the judge a bill including the transcript of the testimony as prepared by the appellant's private stenographer. At the trial the court stenographer was present, and took down the testimony and the rulings and decisions of the court made during the progress of the trial. The district judge refused to sign and seal the bill of exceptions because the same was not made by, and did not purport to be a transcript of the notes of the official stenographer. Efforts were made by the attorney for the appellant to have the judge settle the bill of exceptions so tendered, and like efforts were made to induce the attorney for the appellee to examine such bill, and indicate any objection that he had there to; but these efforts, through no fault of ap pellant, proved futile. Thereupon the attor ney for the appellant filed with the clerk of the district court said bill of exceptions, sup ported by affidavits. He also duly notified the attorney for appellee of the filing of the same, suggesting that the latter might file counter affidavits, if he saw fit. The attor ney for the appellee filed no such counter affidavits, either in the district court or in the supreme court, nor has he ever taken any steps or made any move looking to a deter mination and settlement of the bill of excep tions in this court. This motion to dismiss the bill of exceptions was interposed after the printed abstract of the record was filed in 'this court, but before the filing of any briefs. Thereafter the appellant filed in this court his printed argument and brief, the ap pellee filed her answer thereto, and a brief in reply was filed by the appellant. More than six months after the case was thus submitted in this court the appellee first called up her motion to strike the bill of exceptions from the files.

Tyson S. Dines and Charles J. Hughes, for appellant. A. F. Thompson and L. B. Gibson, for appellee.

PER CURIAM. We think the motion should be denied, for two reasons:

1. It was the duty of the appellee, if the bill of exceptions, as tendered and filed, was not correct, to file counter affidavits thereto in this court, and require this court to settle the same, in accordance with section 385 of the Code of 1887. This was not done. In all respects, the appellant has complied with section 385; and the bill of exceptions as tendered, in the absence of any showing, in the manner pointed out by statute, of its incorrectness, we must hold to be a good and true bill.

2. Even were this not so, the appellee, by her long silence and acquiescence, cannot now insist upon this motion after the case, for months, has been at issue in this court.

There is no requirement of the statute, so far as we are able to ascertain, that the bill of exceptions must be prepared only by the official stenographer of the court, and that none other will be considered. However desirable it may be that the official stenographer shall do this work, there is no imperative requirement that he shali do it; but, on the contrary, section 385 of the Code expressly provides for the filing of a bill of exceptions attested and proved as was the bill to which objection is here urged. For these reasons the motion will be overruled.

In re TYSON.

(21 Colo. 78)

(Supreme Court of Colorado. March 20, 1895.) HABEAS CORPUS-WHEN LIES-ANOTHER ADEQUATE REMEDY.

Under the act of 1893, relating to writs of error in criminal cases, which provides that one under sentence for a capital offense may, for cause shown, have a writ of error to the supreme court, a prisoner convicted of murder, who claims that the judgment of a state court violates his rights under the constitution or laws of the United States, must seek his remedy by writ of error, and not by habeas corpus proceedings.

Henry Tyson, convicted of murder, petitions for a writ of habeas corpus. Denied. N. Q. Tanquary, for petitioner.

HAYT, C. J. At the April term, 1889, of the district court of Arapahoe county, petitioner, Henry Tyson, was convicted of murder of the first degree, and sentenced accordingly. In compliance with the terms of that sentence, he was conveyed to the Colorado state penitentiary for execution, but, before the week of execution had arrived, he was granted a reprieve for 60 days by the governor, to the end that the condition of his mind might be inquired into. In the month of October, 1889, he was brought before the court, and a jury impaneled for the purpose of inquiring into his mental condition. At the first trial the jury disagreed, but at a subsequent trial the petitioner was adjudged to be insane. From said last-mentioned date, and until the 9th day of March, 1895, he has been confined either in the state penitentiary or in the state insane asylum, as an insane prisoner under conviction; but on the latter date he was again brought before the district court of Arapahoe county, in order that his then mental condition might be inquired of. This last inquisition resulted in his being adjudged sane, upon the 15th day of March, 1895, at which time a sentence of death was pronounced, to be executed during the week commencing April 8, 1895. Petitioner, at the time of making this application, was confined in the common jail

of Arapahoe county, in the custody of the sheriff, awaiting transportation to the state penitentiary at Canon City, the place designated as the place of execution of the death penalty. The crime for which the accused is under sentence was committed before the passage of the act of April 19, 1889, which act made some changes as to the time, place, and other incidents pertaining to the infliction of the death penalty; and the claim is that, as the act in force at the time of the commission of the crime has been repealed, the act of April 19, 1889, is ex post facto as to petitioner, and that, for this reason, he is entitled to his liberty.

This is the second application that has been made in this case for the discharge of the prisoner under the habeas corpus act. The first application was made at the September term, 1889. Upon that application the writ was granted, and the petitioner brought before the court; but, after a full hearing, it was adjudged that the changes made by the act of 1889 were referable to prison discipline, and, as such, were within the power of the legislature to enact, and that the changes were not sufficient to render the act ex post facto. The prayer of the petition was, for this reason, denied, and the prisoner remanded. In re Tyson, 13 Colo. 482, 22 Pac. 810. After that decision was announced, the statute under consideration was passed upon by the supreme court of the United States in two cases, in which Medley and Savage were respectively petitioners. 134 U. S. 160, 10 Sup. Ct. 384, and 134 U. S. 176, 10 Sup. Ct. 389. In these cases it was held by the court (Justices Brewer and Bradley dissenting) that the law was ex post facto as to those offenses committed before the passage of the act, and the petitioners were accordingly discharged, as the result of the habeas corpus proceedings. The facts stated in the present petition are the same as those presented in the former, with a history of the case since the former application was determined. The decision of the United States supreme court in the Medley and Savage Cases is relied upon for the purpose of procuring the discharge of the petitioner. We, of course, recognize as binding upon all courts, national and state, the decision in the Medley and Savage Cases; that decision having been based upon the provision of the United States constitution prohibiting ex post facto laws, and emanating from the court of last resort upon questions of this character. It is claimed, however, that the doctrine announced in the Medley and Savage Cases has been modified as the result of several decisions rendered by the same tribunal since the announcement of the opinion in the Medley and Savage Cases, but while it is true that similar questions with reference to the statutes of other states have been passed upon by that court, and although in some of these cases some portions of the argument resorted to by the

court in support of the conclusion reached in the Medley and Savage Cases have been to some extent modified, the decision, in so far as the ex post facto character of our statute is concerned, has not been departed from by the national tribunal, but, on the contrary, it has been expressly recognized in subsequent cases. Holden v. Minnesota, 137 U. S. 483, 11 Sup. Ct. 143; McElvaine v. Brush, 142 U. S. 155, 12 Sup. Ct. 156. And in the recent case of Kelly v. People, 17 Colo. 130, 29 Pac. 805, the ex post facto character of the statute, as the same was interpreted by the supreme court of the United States. was expressly recognized by this court. Kelly was convicted of murder of the second degree in the district court of El Paso county, and sentenced to imprisonment for 26 years; the judge presiding at the trial expressly instructing the jury that he could not be convicted of murder of the first degree, by reason of the former decisions upon the statute. In commenting upon this action of the district judge, Mr. Justice Elliott, in delivering the opinion of the court, said: "In view of these decisions of the highest judicial tribunal of our country, the district court of El Paso county acted wisely in charging the jury not to convict Kelly of a crime so heinous that he would escape punishment altogether." In the Medley and Savage Cases the prisoners were set at liberty without punishment of any kind or character; whereas, if the cases had been heard upon writ of error under the United States statute, the supreme court might have corrected the errors committed by the trial court, or have reversed the judgment, and remanded the cases for a new trial. The court's attention does not, however, seem to have been called to the strong reasons that existed for requiring the review to be upon error, instead of by the summary proceeding upon a writ of habeas corpus. If the court's attention had been called to the form of proceeding and the advisability of requiring the prisoners to have made their application by writ of error, the subsequent decisions of the court, we think, leave no doubt that the writ of habeas corpus would have been denied, and the prisoner required to resort to his writ of error. This conclusion is, we think, fully authorized by the opinion of that court in Re Frederich, 149 U. S. 70, 13 Sup. Ct. 793, in which it is said: "It is certainly the better practice, in cases of this kind, to put the prisoner to his remedy by writ of error from this court, under section 709 of the Revised Statutes, than to award him a writ of habeas corpus; for, under proceedings by writ of error, the validity of the judgment against him can be called in question, and the federal court left in a position to correct the wrong, if any, done the petitioner, and at the same time leave the state authorities in a position to deal with him thereafter, within the limits of proper authority, instead of discharging him

by habeas corpus proceedings, and thereby depriving the state of the opportunity of asserting further jurisdiction over his person in respect to the crime with which he is charged. In some instances, as in Medley, Petitioner, 134 U. S. 160, 10 Sup. Ct. 384, the proceeding by habeas corpus has been entertained, although a writ of error could be prosecuted; but the general rule and better practice, in the absence of special facts and circumstances, is to require a prisoner who claims that the judgment of a state court violates his rights under the constitution or laws of the United States to seek a review thereof by writ of error, instead of resorting to the writ of habeas corpus." See, also, In re Wood, 140 U. S. 278, 11 Sup. Ct. 738.

The petitioner, Tyson, stands convicted of murder of the first degree. No error is claimed in the proceedings prior to judgment. We must therefore assume, for the purposes of this case, that his conviction was in all respects regular and proper. Should this court, therefore, or any other court having jurisdiction, entertain a proceeding by habeas corpus, and discharge the prisoner, he would stand in the anomalous position of having a verdict against him for murder of the first degree, upon which verdict no sentence could be imposed; and, so long as the verdict stood, he probably could not be tried for any of the lesser offenses included in the graver offense charged in the indictment. If, however, the prisoner is relegated to his remedy by writ of error, the judgment of the lower court may be reversed; and, if the facts warrant it, he may be remanded for a new trial for some lower grade of homicide. We note the manifest reluctance with which the supreme court of the United States discharged Medley and Savage as the result of the habeas corpus proceedings. This is apparent from the qualified terms of the order requiring 10 days' notice to the attorney general of Colorado before the final discharge. This notice could have been only for the purpose of giving the state an opportunity to proceed against the prisoners for some lower grade of homicide, although it was correctly assumed by the dissenting judges that the conclusion of the majority would result in giving the prisoners their full liberty. If the decision in the Kelly Case, supra, is sound, we have no doubt of the duty of this court to refuse to entertain the present application by habeas corpus, and relegate the prisoner to his remedy by writ of error. This is in accordance with our statutes with reference to the writ of habeas corpus and writs of error in capital cases. Gen. St. 1883, c. 49; Sess. Laws 1893, p. 128. In the former act certain restrictions are placed upon the issuance of a second writ of habeas corpus, which, we think, prevent this court from discharging the prisoner. Moreover, the case seems to be fully provided for by the act of 1893,

entitled "An act in relation to writs of error in criminal cases." Section 1 of this act reads: "Any defendant under sentence for a capital offense may have a writ of error to the supreme court upon filing in such court, on or before the commencement of the week of execution, a transcript of the record in the court below, duly certified, with an assignment of errors. In cases wherein a bill of exceptions is necessary to a full understanding of the errors assigned, such bill of exceptions shall also be filed with such transcript. Thereupon the clerk of the supreme court shall issue a writ of error to the trial court and a supersedeas to stay the execution of the sentence of death provided the supreme court may, for cause shown, extend the time in which any act herein required is to be performed." By this act the petitioner is given a remedy by writ of error, with an absolute right to have the judgment suspended, pending a hearing and determination; but, in so far as the method of procedure is concerned, we are clearly of the opinion that the petitioner has no right to have the former decision of this court reviewed upon this application. Writ denied.

1. Under Sess. Laws 1889, p. 249, § 3, requiring the claimant of a lien for railway construction to serve a statement on the owner of the property, his agent or trustee, service by delivery to the clerk of the superintendent of the owner is insufficient, in the absence of evidence that the statement was delivered by him to the superintendent.

2. In an action by a laborer employed by a subcontractor to enforce a mechanic's lien, the contractor, if service can be had on him, is a necessary party.

Error to district court, Arapahoe county. Action by Jasper Davidson against the Union Pacific Railway Company and another to enforce a mechanic's lien. There was a judgment for plaintiff, and the railway company brings error. Reversed.

7

This is an action to enforce a mechanic's lien, which, if it accrued at all, arose after the amendments of the mechanic's lien act of 1889 went into effect. Davidson, the plaintiff, was employed by one Sipole, a subcontractor, to do work upon a railroad grade of which the defendant railway company was the owner. D. D. Streeter was the original contractor, but was not made a party defendant to this action. Upon trial by the court, a personal judgment for the amount of the claim was given in favor of the plaintif against Sipole, and a lien therefor adjudged against that portion of the railway company's grade upon which the plaintiff labored. From the decree enforcing this lien, the railway company comes here by writ of error, and