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In our judgment, the construction contend- ity is under the absolute control of the state, ed for by the friends of this bill should not and that the appropriation attempted to be be indulged–First, for the reason that, un- .authorized by the bill under consideration is der the ordinary and usual rule of construc- forbidden by section 34 of article 5 of our tion, the qualifying words, “not under the state constitution. We have not reached this absolute control of the state,” should be held conclusion without much reluctance. The to refer to the first preceding subject to which condition of the people sought to be benefited they can be consistently applied, to wit, “per-by this act appeals to all to overlook the son, corporation, or community,” rather than rules and principles established by our state to be carried back to the word “appropria- constitution, but the question presented must tion"; second, no sufficient reason appears be determined by the court without referfor requiring the appropriation to be under the ence to the hardships the conclusion may absolute control of the state, while there are work in individual cases. strong arguments in favor of limiting the beneficiaries to those institutions and associations under state control. An examination of

(21 Colo. 74) the proceedings of the constitutional conven

PORTER V. GRADY. tion with reference to this section, in the light of the facts as they then existed, fur

(Supreme Court of Colorado. April 1, 1895.) nishes a strong, if not a conclusive, argument

PLEADIXG-GENERAL DESIAL-EFFECT OF SPECIF

IC DENTALS - FORECLOSURE OF MORTGAGE-Secin support of the conclusion indicated. The

OND MORTGAGEE as DEFENDANT-EQUITY_JURY section, as first introduced, reads as fol- TRIAL lows, without the parenthetical clause: "No 1. A general denial is not limited by specific appropriation shall be made for charitable, denials, not inconsistent therewith, so that the educational or bevevolent purposes to any

insufficiency of the specific denials will render

insufficient. person or community (not under the absolute the 2. In ear foreclosure suit it is error to dismiss control of the state) nor to any denomination- a cross complaint, whereby a defendant claims al or sectarian institution, corporation or asso

that his mortgage lien is prior to plaintiff's,

merely because his lien is inferior, as he is enciation." The words in brackets, "not under titled to satisfaction of his mortgages from the the absolute control of the state,” were in- | surplus after payment of plaintiff's lien. serted as an amendment to the provision as

3. In an action for the foreclosure of a

mortgage, the court may summon a jury to anoriginally drafted. This amendment was es

swer a question of fact, the verdict in such a sential in order that the state might support case being merely advisory. the educational and other institutions estab

Error to Yuma county court. lished and fostered by the territorial govern

Action by J. Douglas Grady against James ment. There being no disposition to with

D. Porter and others to foreclose a mortgage. hold state aid from these institutions, the

From a decree foreclosing plaintiff's mortamendment became necessary in order that

gage, and dismissing defendant Porter's such aid might be extended in the future. It

cross complaint, the latter brings error. Reis clear that the section, as originally pre

versed. pared, absolutely prohibited the state from J. Douglas Grady, the defendant in error, extending aid for charitable, educational, or

brought an action to foreclose a mortgage benevolent purposes; and it seems equally upon certain real estate, executed by one clear that the amendment was not for the

Wickliff Newell on the 29th day of Novempurpose of changing the original intent of the

ber, 1887, and given to secure a promissory section, except in so far as the same became note of even date therewith for the sum of necessary to authorize the support of those $535, payable May 29, 1888. This mortgage persons, corporations, etc., wbich were then,

was recorded on the 29th day of December, or might in the future be brought, under the

1887. The plaintiff in error, James R. Porcontrol of the state. We find the principle ter, was made a party defendant, and anunderlying this bill condemned by our con

swered by a general denial, and filed a cross stitution as unsafe and dangerous. It would

complaint setting forth a mortgage upon the permit relief to the silver miner whose oc

same property, executed by said Newell on cupation has been destroyed by hostile leg- the 26th of November, 1886, to secure a cerislation of congress, to the mechanic who has tain promissory note of even date therewith, lost his tools, to cities consumed by fire, and

for the sum of $319, payable on or before to a railroad company whose road has been

January 1, 1888. This mortgage was recorddestroyed by an act of God. And, however ed on the 10th day of March, 1888. He furstrongly the unfortunate condition of these ther averred: “That, at date prior to the farmers may appeal to the members of this said mortgage in the said complaint mencourt, as individuals, as judges sworn to sup- tioned, the said defendant Newell advised port the constitution the question presented the said plaintiff of the giving of the said is one purely of constitutional law. We think mortgage by the defendant Newell to the it is clear that the state cannot, in its sov- said defendant James R. Porter; that, at the ereign capacity, extend aid for charitable, in- said time of the giving of the said mortgage dustrial, educational, or benevolent purposes to him, the said plaintiff, as in the complaint to any person, corporation, or community, is alleged, well knew of the giving of the unless such person, corporation, or commun- said mortgage to the said defendant Porter.". For replication to this cross complaint, plain- | notice, that notice was thereby admitted. tiff filed general denial, and specifically de- This claim we think is without merit. The nied the allegation that at the time of the specific denials in no sense admit any fact execution and delivery of plaintiff's mort- alleged in the complaint, and, while unnecesgage Newell advised him of the existence of sary, they were not inconsistent with the the note and mortgage described in the cross general denial, nor did they in any manner complaint; and also specifically denied that limit its force or effect. The question of nohe then or theretofore had knowledge or tice was put in issue by the pleadings, and means of knowledge from any of said defend- the motion for judgment thereon was propants, or from any other source whatever, of erly denied. The testimony introduced upon said mortgage. Newell filed no answer to the trial not having been preserved by a bill Porter's cross complaint. Upon these plead- of exceptions, we must assume that the eviings Porter moved for judgment, which was dence was sufficient to sustain the finding of denied. The cause coming on for trial, the the court below that Grady's mortgage was court of its own motion summoned a jury of a prior lien to that of Porter. The second 12 to try the question of fact whether Grady, objection is well taken. It is clear that the at the time of taking his mortgage, had court erred in dismissing the cross complaint. knowledge of the existence of the mortgage The plaintiff in error was entitled thereon to theretofore given to Porter. The jury re- relief against his codefendant, Newell, and fused to deliver up the verdict until their to have his mortgage adjudged a second lien fees had been paid. Both parties refusing to upon the real estate in question, and to have pay the fees, the jury was discharged, and the surplus, if any, derived from its sale, the court, upon the evidence introduced, after satisfying the prior lien of defendant found that the plaintiff did not have knowl- in error, applied towards the satisfaction of edge of the existence of the Porter mortgage his claim. at the time of the execution and delivery of It is unnecessary to discuss the third questhe mortgage to him, and ordered "that all tion presented, since the right of the court costs occasioned by the said James R. Por- to call a jury to answer questions of fact in ter's cross bill herein be taxed to the said chancery cases is too well settled to admit of James R. Porter, including the jury fee here- controversy; and we know of no rule that in, and that the cross bill be dismissed." limits the court in calling a full jury for that The journal entry further recites that “this purpose; and, furthermore, the verdict of the cause coming on to be heard as between the jury in such case being merely advisory, the said J. Douglas Grady, plaintiff herein, and court may disregard it, and decide the issue Wickliff Newell, defendant,

the of fact for itself, on the evidence produced. defendant Wickliff Newell made default, and The judgment must be reversed, and the the court

orders that judgment cause remanded, with directions to the court be rendered against Wicklift Newell, and in below to reinstate the cross complaint of favor of J. Douglas Grady, for the sum of plaintiff in error, and to grant him the relief $635.91, and attorney's fee taxed at $80.25, he is entitled to thereon as against his code and all costs,

and that the mort- fendant, Newell, and decree to him the sur. gage herein foreclosed be decreed to be the plus, if any, derived from the sale of the prior and superior lien,

and the mortgaged premises, after satisfying there property sold,

and that special ex- from the prior lien of defendant in error. ecution issue for the sale of said property, The plaintiff in error having failed to make and that general execution issue for any bal- Newell a party to the proceeding, and the ance."

defendant in error being entitled to the de

cree in his favor, the cost in this court must Rogers & Stair, for plaintiff in error.

be assessed against plaintiff in error, ReMuntzing & Barnes and W. E. Beck, for de

versed and remanded. fendant in error.

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GODDARD, J. (after stating the facts). The evidence introduced upon the trial was

(21 Colo. 86)

REYNOLDS v. CAMPLING. not preserved by a bill of exceptions, and our review is therefore limited to the record (Supreme Court of Colorado. April 1, 1895.) proper. The foregoing statement sufficiently APPEAL-BILL OF Exceptions -SETTLEMENT AND presents the rulings upon which error is as

SIGNING. signed. These may be summarized under 1. A bill of exceptions embracing the testhree heads: First, that the court erred in

timony as prepared by the appellant's private denying motion for judgment upon the plead

stenographer is a sufficient compliance with

Code 1887, § 385, and it is error for the court ings; second, in dismissing the counterclaim; to refuse to sign and seal it because of its not third, in summoning a jury of 12 on its own

having been prepared by the official stenogramotion, to try the issue of fact. In support

pher, where the appellee neglects, upon the ap

pellant's suggestion, to file counter affidavits to of the first proposition, it is contended by those filed in support of the bill. plaintiff in error that the specific denials in 2. & motion to dismiss the appellant's bill the replication to his cross complaint limited

of exceptions because not properly prepared will

be denied where it is not insisted upon until six the general denial, and, being in themselves

months after submission of the case, and after insufficient to put in issue the question of the parties have filed their respective briefs.

It ap

Appeal from district court, Otero county. 2. Even were this not so, the appellee, by

Action between A. E. Reynolds and Mary her long silence and acquiescence, cannot B. Campling. From the judgment, Reynolds now insist upon this motion after the case, appeals. Motion to strike out bill of excep- for months, has been at issue in this court. tions. Overruled.

There is no requirement of the statute, so The appellee moves to strike the bill of ex- far as we are able to ascertain, that the bill ceptions from the files in this case.

of exceptions must be prepared only by the pears that within the time fixed by the court official stenographer of the court, and that for the filing of the bill of exceptions the ap- none other will be considered. However depellant tendered to the judge a bill including sirable it may be that the official stenograthe transcript of the testimony as prepared | pher shall do this work, there is no imperaby the appellant's private stenographer. At tive requirement that he shali do it; but, on the trial the court stenographer was present, the contrary, section 385 of the Code expressand took down the testimony and the rulingsly provides for the filing of a bill of excepand decisions of the court made during the tions attested and proved as was the bill to progress of the trial. The district judge re- which objection is here urged. For these fused to sign and seal the bill of exceptions reasons the motion will be overruled. 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

(21 Colo. 78) by the attorney for the appellant to have the

In re TYSON. judge settle the bill of exceptions so tendered, and like efforts were made to induce the at:

(Supreme Court of Colorado. March 20, 1895.) torney for the appellee to examine such bill,

HABEAS CORPUS-Wues Lies—ANOTHER ADEand indicate any objection that he had there

QUATE REMEDY.

Under the act of 1893, relating to writs to; but these efforts, through no fault of ap

of error in criminal cases, which provides that pellant, proved futile. Thereupon the attor one under sentence for a capital offense may, for ney for the appellant filed with the clerk of cause shown, have a writ of error to the supreme the district court said bill of exceptions, sup.

court, a prisoner convicted of murder, who

claims that the judgment of a state court vioported by affidavits. He also duly notified lates his rights under the constitution or laws the attorney for appellee of the filing of the of the United States, must seek his remedy by same, suggesting that the latter might file

writ of error, and not by habeas corpus proceed

ings. counter affidavits, if he saw fit. The attor ney for the appellee filed no such countei

Henry Tyson, convicted of murder, petiaffidavits, either in the district court or in the

tions for a writ of habeas corpus. Denied. supreme court, nor has he ever taken any N. Q. Tanquary, for petitioner. steps or made any move looking to a deter: mination and settlement of the bill of excep HAYT, C. J. At the April term, 1889, of tions in this court. This motion to dismiss the district court of Arapahoe county, petithe bill of exceptions was interposed after tioner, Henry Tyson, was convicted of murthe printed abstract of the record was filed der of the first degree, and sentenced accordin 'this court, but before the filing of any ingly. In compliance with the terms of that briefs. Thereafter the appellant filed in this

sentence, he was conveyed to the Colorado court his printed argument and brief, the ap. state penitentiary for execution, but, before pellee filed her answer thereto, and a brief the week of execution had arrived, he was in reply was filed by the appellant. More granted a reprieve for 60 days by the governthan six months after the case was thus sub

or, to the end that the condition of his mind mitted in this court the appellee first called

might be inquired into. In the month of up her motion to strike the bill of excep- October, 1889, he was brought before the tions from the files.

court, and a jury impaneled for the purpose Tyson S. Dines and Charles J. Hughes, for of inquiring into his mental condition. At appellant. A. F. Thompson and L. B. Gib

the first trial the jury disagreed, but at a son, for appellee.

subsequent trial the petitioner was adjudged

to be insane. From said last-mentioned date, PER CURIAM. We think the motion and until the 9th day of March, 1895, he has should be denied for two reasons:

been confined either in the state peniten1. It was the duty of the appellee, if the tiary or in the state insane asylum, as an bill of exceptions, as tendered and filed, was insane prisoner under conviction; but on the not correct, to file counter affidavits thereto latter date he was again brought before the in this court, and require this court to settle | district court of Arapahoe county, in order the same, in accordance with section 385 of that his then mental condition might be inthe Code of 1887. This was not done. In quired of. This last inquisition resulted in all respects, the appellant has complied with his being adjudged sane, upon the 15th day section 385; and the bill of exceptions as of March, 1895, at which time a sentence tendered, in the absence of any showing, in of death was pronounced, to be executed the manner pointed out by statute, of its in- during the week commencing April 8, 1895. correctness, we must hold to be a good and Petitioner, at the time of making this aptrue bill.

plication, was confined in the common jail of Arapahoe county, in the custody of the court in support of the conclusion reached sheriff, awaiting transportation to the state in the Medley and Savage Cases have been penitentiary at Canon City, the place desig- to some extent modified, the decision, in so nated as the place of execution of the death far as the ex post facto character of our penalty. The crime for which the accused statute is concerned, has not been departed is under sentence was committed before the from by the national tribunal, but, on the passage of the act of April 19, 1889, which contrary, it has been expressly recognized act made some changes as to the time, place, in subsequent cases. Holden v. Minnesota, and other incidents pertaining to the inflic- 137 U. S. 483, 11 Sup. Ct. 143; McElvaine v. tion of the death penalty; and the claim is Brush, 142 U. S. 155, 12 Sup. Ct. 156. And that, as the act in force at the time of the in the recent case of Kelly v. People, 17 Colo. commission of the crime has been repealed, 130, 29 Pac. 805, the ex post facto character the act of April 19, 1889, is ex post facto of the statute, as the same was interpreted as to petitioner, and that, for this reason, by the supreme court of the United States, he is entitled to his liberty.

was expressly recognized by this court. KelThis is the second application that has ly was convicted of murder of the second been made in this case for the discharge of degree in the district court of El Paso counthe prisoner under the habeas corpus act. ty, and sentenced to imprisonment for 26 The first application was made at the Sep- years; the judge presiding at the trial extember term, 1889. Upon that application the pressly instructing the jury that he could writ was granted, and the petitioner brought not be convicted of murder of the first debefore the court; but, after a full hearing, gree, by reason of the former decisions upon it was adjudged that the changes made by the statute. In commenting upon this acthe act of 1889 were referable to prison dis- | tion of the district judge, Mr. Justice Elliott, cipline, and, as such, were within the power in delivering the opinion of the court, said: of the legislature to enact, and that the "In view of these decisions of the highest changes were not sufficient to render the act judicial tribunal of our country, the district ex post facto. The prayer of the petition court of El Paso county acted wisely in was, for this reason, denied, and the pris- | charging the jury not to convict Kelly of a oner remanded. In re Tyson, 13 Colo. 482, crime so heinous that he would escape pun22 Pac. 810. After that decision was an- ishment altogether.” In the Medley and Savnounced, the statute under consideration was age Cases the prisoners were set at liberty passed upon by the supreme court of the without punishment of any kind or characUnited States in two cases, in which Medley ter; whereas, if the cases had been heard and Savage were respectively petitioners. upon writ of error under the United States 134 U. S. 160, 10 Sup. Ct. 384, and 134 U. S. statute, the supreme court might have cor176, 10 Sup. Ct. 389. In these cases it was rected the errors committed by the trial held by the court (Justices Brewer and Brad- court, or have reversed the judgment, and ley dissenting) that the law was ex post remanded the cases for a new trial. The facto as to those offenses committed before court's attention does not, however, seem to the passage of the act, and the petitioners have been called to the strong reasons that were accordingly discharged, as the result | existed for requiring the review to be upon of the habeas corpus proceedings. The facts error, instead of by the summary proceeding stated in the present petition are the same upon a writ of habeas corpus. If the court's as those presented in the former, with a attention had been called to the form of history of the case since the former applica- proceeding and the advisability of requiring tion was determined. The decision of the the prisoners to have made their application United States supreme court in the Medley by writ of error, the subsequent decisions and Savage Cases is relied upon for the pur- | of the court, we think, leave no doubt that pose of procuring the discharge of the peti- the writ of habeas corpus would have been tioner. We, of course, recognize as binding denied, and the prisoner required to resort upon all courts, national and state, the de- to his writ of error. This conclusion is, we cision in the Medley and Savage Cases; that think, fully authorized by the opinion of decision having been based upon the pro- that court in Re Frederich, 149 U. S. 70, vision of the United States constitution pro- 13 Sup. Ct. 793, in which it is said: “It is hibiting ex post facto laws, and emanating certainly the better practice, in cases of this from the court of last resort upon questions kind, to put the prisoner to his remedy by of this character. It is claimed, however, writ of error from this court, under section that the doctrine announced in the Medley 709 of the Revised Statutes, than to award and Savage Cases has been modified as the him a writ of habeas corpus; for, under proresult of several decisions rendered by the ceedings by writ of error, the validity of same tribunal since the announcement of the the judgment against him can be called in opinion in the Medley and Savage Cases, question, and the federal court left in a but while it is true that similar questions position to correct the wrong, if any, done with reference to the statutes of other states the petitioner, and at the same time leave have been passed upon by that court, and the state authorities in a position to deal although in some of these cases some por- with him thereafter, within the limits of tions of the argument resorted to by the proper authority, instead of discharging him by habeas corpus proceedings, and thereby entitled “An act in relation to writs of error depriving the state of the opportunity of as- in criminal cases." Section 1 of this act serting further jurisdiction over his person reads: "Any defendant under sentence for in respect to the crime with which he is a capital offense may have a writ of error to charged. In some instances, as in Medley, the supreme court upon filing in such court, Petitioner, 134 U. S. 160, 10 Sup. Ct. 381, on or before the commencement of the week the proceeding by habeas corpus has been of execution, a transcript of the record in entertained, although a writ of error could the court below, duly certified, with an asbe prosecuted; but the general rule and signment of errors. In cases wherein a bill better practice, in the absence of special of exceptions is necessary to a full underfacts and circumstances, is to require a pris- standing of the errors assigned, such bill of oner who claims that the judgment of a exceptions shall also be filed with such transtate court violates his rights under the con- script. Thereupon the clerk of the supreme stitution or laws of the United States to seek court shall issue a writ of error to the trial a review thereof by writ of error, instead court and a supersedeas to stay the execuof resorting to the writ of habeas corpus.” tion of the sentence of death provided the See, also, In re Wood, 140 U. S. 278, 11 Sup. supreme court may, for cause shown, extend Ct. 738.

the time in which any act herein required The petitioner, Tyson, stands convicted of is to be performed.” By this act the petimurder of the first degree. No error is tioner is given a remedy by writ of error, claimed in the proceedings prior to judg- with an absolute right to have the judgment ment. We must therefore assume, for the suspended, pending a hearing and determipurposes of this case, that his conviction nation; but, in so far as the method of prowas in all respects regular and proper. cedure is concerned, we are clearly of the Should this court, therefore, or any other opinion that the petitioner has no right to court having jurisdiction, entertain a pro

have the former decision of this court receeding by habeas corpus, and discharge the viewed upon this application. Writ denied. prisoner, he would stand in the anomalous position of having a verdict against him for murder of the first degree, upon which ver

(21 Colo. 93) dict no sentence could be imposed; and, so

UNION PAC. RY. CO. y. DAVIDSON. long as the verdict stood, he probably could not be tried for any of the lesser offenses

(Supreme Court of Colorado. April 1, 1895.) included in the graver offense charged in the

MECHANIC'S LIEN RAILROAD CONSTRUCTION

SERVICE OF NOTICE ON OWNER-Surt BY SUBindictment. If, however, the prisoner is rele

CONTRACTOR-NECESSARY PARTIES. gated to his remedy by writ of error, the

1. Under Sess. Laws 1889, p. 249, § 3, rejudgment of the lower court may be reversed; ) quiring the claimant of a lien for railway conand, if the facts warrant it, he may be re

struction to serve a statement on the owner of manded for a new trial for some lower grade

the property, his agent or trustee, service by

delivery to the clerk of the superintendent of of homicide. We note the manifest reluc- the owner is insufficient, in the absence of evitance with which the supreme court of the dence that the statement was delivered by him United States discharged Medley and Savage

to the superintendent.

2. In an action by a laborer employed by a as the result of the habeas corpus proceed- subcontractor to enforce a mechanic's lien, the ings. This is apparent from the qualified contractor, if service can be had on him, is a terms of the order requiring 10 days' notice necessary party. to the attorney general of Colorado before Error to district court, Arapahoe county. the final discharge. This notice could have Action by Jasper Davidson against the been only for the purpose of giving the state Union Pacific Railway Company and anothan opportunity to proceed against the pris- er to enforce a mechanic's lien. There was a oners for some lower grade of homicide, al- judgment for plaintiff, and the railway comthough it was correctly assumed by the dis- pany brings error. Reversed. senting judges that the conclusion of the This is an action to enforce a mechanic's majority would result in giving the prison- lien, which, if it accrued at all, arose after ers their full liberty. If the decision in the the amendments of the mechanic's lien act Kelly Case, supra, is sound, we have no of 1889 went into effect. Davidson, the plain. doubt of the duty of this court to refuse to tiff, was employed by one Sipole, a subconentertain the present application by habeas tractor, to do work upon a railroad grade of corpus, and relegate the prisoner to his which the defendant railway company was remedy by writ of error. This is in accord- the owner. D. D. Streeter was the original ance with our statutes with reference to the contractor, but was not made a party defendwrit of habeas corpus and writs of error in ant to this action. Upon trial by the court, capital cases. Gen. St. 1883, c. 49; Sess. a personal judgment for the amount of the Laws 1893, p. 128. In the former act cer- claim was given in favor of the plaintifi tain restrictions are placed upon the issuance against Sipole, and a lien therefor adjudged of a second writ of habeas corpus, which, against that portion of the railway company's we think, prevent this court from dischar-grade upon which the plaintiff labored. From ging the prisoner. Moreover, the case seems the decree enforcing this lien, the railway to be fully provided for by the act of 1893, company comes here by writ of error, and

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