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and fixing new boundaries in the same manner and to the same extent as is required in making a new location, or the relocator may sink the original discovery shaft ten feet deeper than it was at the date of commencement of such relocation, and shall erect new, or make the old monuments the same as originally required; in either case a new location monument shall be erected and the location certificate shall state if the whole or any part of the new location is located as abandoned property." Under the finding of the court as above set forth, it is apparent that this ground could not be classed as abandoned property, and that Chamberlain never proreeded far enough to acquire any rights to be lost by abandonment or otherwise. Section 2 of the above act provides that: "Before filing such notice for record, the discoverer shall locate his claim by first sinking a discovery shaft upon the lode, to the depth of ten (10) feet from the lowest part of the rim of such shaft at the surface.

The court found that this requirement of the statute was complied with by the respondent's grantor, and the finding is sustained by the testimony.

There is no error in the record, and the judgment is affirmed.

.MOUNT, C. J., and FULLERTON, HADLEY, and DUNBAR, JJ., concur.

(45 Wash. 37).

STATE ex rel. DAVENPORT et al. v. POINDEXTER, Judge.

(Supreme Court of Washington. Dec. 15, 1906.) HABEAS CORPUS APPEAL SUPERSEDEAS — CUSTODY OF INFANTS. Where, in a habeas corpus proceeding in the superior court, a mother recovered the custody of her minor children from their adopted parents, the giving of a supersedeas bond by the adopted parents did not give them a right to the custody of the children pending the appeal.

Application by the state of Washington, on the relation of William I. Davenport and another, for a writ of habeas corpus against Miles Poindexter, judge of the superior court of Spokane county. Denied.

Hamblen, Lund & Gilbert, for plaintiffs. Danson & Williams, for defendant.

ROOT, J. This is an original application for a writ of habeas corpus directing and commanding the above-named respondent to deliver, or to direct the delivery of, the possession, custody, and control of Roy Elliott Pierce and John Edgar Pierce, two minors, to the above-named relators. The material facts are substantially these: Relators were awarded the custody of said children by virtue of certain adoption proceedings which are claimed by the mother of said children to have been fraudulent and invalid. Said mother instituted habeas corpus proceedings before the above-named respondent to re

cover the possession, custody, and control of said minors, and the cause came on for hearing before said respondent; the children being brought into the custody of said court upon the writ issued. During the hearing said respondent directed that said minors should remain in the custody of one Mrs. Hubbard, the matron of the juvenile department of said court, and said children were placed in such custody, and were there at the time the court rendered its final judgment and decree wherein, and whereby the care, custody, and control of said minor children was awarded to their mother. From this judgment and decree an appeal was taken to this court, and a supersedeas bond duly filed by these relators. Thereafter relators made a motion for the delivery of the possession, custody, and control of said minors to them upon the ground that they had filed the supersedeas bond in the amount fixed by the court. This motion was denied by respondent.

It is contended here by relators that the filing of the supersedeas bond had the effect of leaving all parties in the position they occupied at the commencement of the habeas corpus proceedings before respondent, and that, as they then had the possession and custody of the children, they became immediately entitled thereto again upon the giving of said stay bond, and that a writ should is-sue requiring respondent to direct the delivery of said minors to relators. We do not think this position tenable. Where minor children are involved, a much different consideration is presented than obtains with reference to mere property rights. The welfare of the children is a matter of prime importance and public concern, and must be the subject of careful consideration at all stages of any proceeding wherein their possession, custody, or control is involved. In such a proceeding as this we do not think the giving of a supersedeas bond has any effect whatever upon the possession, custody, and control of the minor children in question. It being presumed that the order of the trial judge was correct, and that he was actuated by a consideration of the minors' welfare, it would be against public policy to have that welfare imperiled during an appeal, in the absence of a statute clearly permitting the staying of such orders. The trial court had jurisdiction to take said children into its possession if it believed that their physical or moral welfare or other substantial interests necessitated such action. When the appeal was perfected, this court became invested with jurisdiction to make such orders as the welfare and necessities of said minors might demand. If, as contended by relator, the present situation of these minors is so unsuitable as to menace their physical or moral welfare or other substantial interests. the question of an appropriate change could doubtless be considered by this court upon a proper showing. Irving v. Irving, 26 Wash.

125, 66 Pac. 123. But such a matter is not before us at this time. Relators are basing their right to the immediate possession of said children upon the supersedeas bond given as aforesaid. The giving of said bond does not entitle them to such possession.

The application for the writ is denied.

MOUNT, C. J., and DUNBAR, HADLEY, and FULLERTON, JJ., concur. RUDKIN and CROW, JJ., not sitting.

(45 Wash. 55)

timony was offered at the trial tending to show the habits and mental condition of the deceased. The witnesses on the part of the appellant testified that he was generally intoxicated, that his looks and actions were strange and peculiar at times, and that in their opinion he was insane. On the other hand, witnesses on the part of the respondents, who had known the deceased intimately for years prior to his death, testified that he was sound of mind and temperate in his habits. A review of this confiicting testimony would serve no useful purpose, and we content ourselves by simply announcing our conclusion that the finding of the court on the question of testamentary capacity is fully sustained by the testimony. There was testimony tending to show that the testator was sane at all times, and was rarely, if ever, intoxicated; and, if we were to concede that he was intoxicated and insane at intervals, yet there is ample testimony to show that he was both sane and sober at the time of the execution of this will. The charge of undue influence on the part of the respondents and the brothers of the respondent Weise finds its chief support in the fact that those parties espoused the cause of the deceased in a divorce proceeding instituted Appeal from Superior Court, Superior Court, Spokane against him by the appellant some two years County; Henry L. Kennan, Judge. before his death and made affidavits in his behalf.


In a win contest, evidence held insufficient to show that the will was procured by undue influence.




Where the unsuccessful contestant of a will claimed under one will, and the respondents claimed under another, the court properly declined to award costs to the contestant out

of the estate.

[Ed. Note. For cases in point, see Cent. Dig. vol. 49, Wills, §§ 877, 878.]

Will contest by Amelia Rathjens against F. S. Merrill, as administrator with the will annexed of Jacob Rathjens, and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

A. C. Shaw and John C. Kleber, for appellant. Graves, Kizer & Graves, for respondents.

RUDKIN, J. This is an appeal from an order dismissing a will contest. A sufficient statement of the case will be found in the opinion of this court on a former appeal, where a judgment of nonsuit was reversed. Rathjens v. Merrill, 38 Wash. 442, 80 Pac. 754.

The grounds of the contest were undue influence and want of testamentary capacity resulting from intemperance and insanity. No claim of a general lack of testamentary capacity was advanced by the appellant at the trial. Indeed, her own conduct precluded her from advancing any such claim, inasmuch as the testator executed a will in her favor only 17 days before the execution of the will now under contest, and that will she caused to be probated, proving to the satisfaction of the court that at the time of its execution the testator was of sound and disposing mind and memory. It was practically conceded, therefore, that the testator was sober at times, and had lucid intervals, during which he had sufficient mind and memory to enable him to comprehend the nature and extent of his property and to recollect the objects of his bounty. Much tes

There was testimony also-some of it from doubtful sources-tending to prove declarations and statements alleged to have been made by the deceased, by the respondents. and by the brothers of the respondent Weise in relation to the appellant and in relation to the property of the deceased. The making of such statements is denied, except the statements attributed to the deceased, and it is a significant fact that in all his letters to the appellant, in which he deplored their estrangement and separation, the deceased never so much as referred to his brothers-inlaw as the authors of his woes. But the conduct of the deceased himself both before and after the execution of the will in controversy here rebuts even the slightest inference of undue influence. He was in Davenport, miles away from those who are alleged to have influenced his acts and conduct, for the greater part of the two months immediately preceding the execution of this will. He left Davenport for Spokane, declaring to some of his friends that he was going to execute a will in favor of the respondent Weise, to others that he was going to will his property to his friends. In the note written immediately before inflicting the wound which afterwards resulted in his death, and which he doubtless intended as his last communication in life, he declared that he was about to shoot himself on a count of his wife; that all she was after was his property; that she thought he was so dumb that he did not know it; and that

In replevin by a corporation for its records and seal, defendant answered that he was the secretary thereof, which the corporation by replication denied. The corporation proved that the property belonged to it, and that delivery thereof had been refused after demand. There was no other evidence. Held not to present any question as to the right to the office of secretary of the corporation.

all his property was for the respondent, a corporation may, in its own name, maintain an Weise. Between the time he received his moraction to recover such property. 2. SAME-ISSUES. tal wound and the time of his death, some weeks thereafter, he repeatedly declared that he had willed his property to the respondent Weise, and expressed satisfaction with the disposition made. Counsel argue that the fact that the deceased made two wills with in a period of 17 days, naming different devisees, is evidence of mental incapacity or undue influence. It might be convenient to attribute a change of mind which cannot be otherwise satisfactorily accounted for to insanity, drunkenness, or undue influence, but this we are not at liberty to do. We know not what hopes or promises may have induced the deceased to execute the will in favor of the appellant. If we did, the mystery surrounding the change of beneficiaries might be solved.

Again, it is argued that it is unnatural that the husband should disinherit the wife, in view of the number and character of the letters written to her within the few months preceding his death. The answers to these letters, or a failure to respond to his repeated appeals for a reconciliation, miglit afford some explanation of a change of mind and heart. It is impossible to read the record in the first divorce suit, with its charges and counter charges, the record in the second divorce suit, the threat from the attorney for the appellant to the deceased a few days before his death, that, if he did not obtain a decree of divorce from the appellant in the pending suit, she would amend her answer and pray for one, the note written by the deceased at the time of his attempt to commit suicide, and then declare that the conduct of the deceased was either unseemly

or unnatural.

Lastly, it is contended that the court erred in not allowing the appellant her costs in the court below. Conceding that a court may in its discretion allow an heir who unsuccessfully contests his ancestor's will costs out of the estate, yet in this case, where the appellant claimed under one will and the respondents under another, the court properly declined to award costs to the unsuccessful contestant. For a like reason, her prayer for costs in this court is disallowed.

The judgment of the court below is free from error and should be affirmed, and it is so ordered.

HADLEY, FULLERTON, and CROW, JJ., concur. MOUNT, C. J., and DUNBAR, J., not sitting.

(38 Colo. 80)


Though the secretary of a corporation is by law the custodian of its records and seal,


In replevin by a corporation for its records and seal, a person may testify that he was the general manager of the corporation, and as such made a demand for the delivery of the property, which was refused, as against the objection that parol proof was inadmissible to prove that the witness was an officer of the corporation.


The manager of a corporation is presumed to act with the authority of the corporation when making a demand for the possession of its property.

Appeal from District Court, El Paso County; Louis W. Cunningham, Judge.

Action by the Alert Gold Mining Company against J. W. D. Stovell. From a judgment for plaintiff, defendant appeals. Affirmed.

W. K. Brown, for appellant. Gunnell, Chinn & Miller, for appellee.

STEELE, J. Claiming to be the owner and entitled to the immediate possession of certain personal property, consisting principally of its record books and seal, the Alert Gold Mining Company brought suit in replevin for the recovery of the possession of the property and for damages for the detention of the same against John D. Stovell, who, it was alleged, wrongfully detained it and refused to deliver it upon demand. The answer avers that defendant, Stovell, is the duly qualified and acting secretary of the company, and as such, under the statutes of the state and the bylaws of the company, is the proper custodian of its record books and seal, and that said property was in the possession of the company at the time the suit was instituted. The replication denies that the defendant is, or at the time of the commencement of the suit was, the secretary of the company, and denies that the company was in the possession of the property, through its secretary or otherwise, at the time of the commencement of the suit. A witness for the plaintiff testified that the property in question was the property of the corporation; that he was a director and the general manager, and had made a demand upon the defendant for the property; and that defendant had declined to deliver it to the company. After motion to strike out all the testimony was denied, plaintiff rested. The defendant offered no testimony. Judgment was rendered for the return of the property, and the defendant appealed to the court of appeals.

The appellant contends that the court erred in appointing a custodian of the property,

pending the litigation. We shall not discuss the question raised, for the reason that the order made did not determine the rights of the parties.

It is contended that, as the secretary of the corporation is by law made the custodian of the records and seal, he alone is authorized to bring a suit for the possession thereof. It is entirely probable that the secretary of a corporation could maintain a suit of replevin to recover possession of such of the company's property as he is entitled to the possession of, but, as the property of which he is the custodian is the property of the corporation, we know of no reason why the corporation itself may not maintain an action to recover its property. We think there is nothing in the defendant's contention, and that the suit was properly brought by the corporation.

It is next contended that the real controversy was over the office of secretary of the company, and authorities are cited holding that the right to an office cannot be tried in an action of replevin. There is no such question presented by the record. It does not appear from the testimony that any one held the office of secretary of the corporation. The defendant alleged in the answer that he was then, and was at the time of the bringing of the suit, the secretary of the company, but this was denied by the replication. The plaintiff proved that the property belonged to the corporation, that delivery thereof had been refused after demand, and rested. The defendant did not cross-examine plaintiff's witnesses, and offered no testimony, and there was no question of the kind now raised presented to the trial judge.

It is next contended that the court received incompetent and secondary evidence. The court, over the objection of the defendant, permitted a witness to testify that he was an officer of the corporation and that a demand was made by him for the delivery of the property. The objection was that the records were the best evidence of who the company's officers were, and that no authority from the board of directors for making the demand was shown. The position of counsel is untenable. The title to the office of manager was not in dispute, and the authorities are numerous, when the title to an office is involved only incidentally, that parol proof is not objectionable, and that the fact of the existence of the corporation, or the fact that one is an officer of the corporation, may be proved by one who knows the fact. The manager is presumed to have acted with the authority of the corporation in making demand for the possession of its property, and there was nothing shown which overcomes this presumption.

There being no error disclosed by the record, the judgment is affirmed.


(38 Colo. 289)



On an issue as to whether plaintiff, who was employed by defendant, the owner of a mine, as a watchman, was re-engaged after having been discharged, evidence of the execution of a lease of the mine and entry of the lessee on the day of the discharge was admissible as tending to show that plaintiff's services were not required after the discharge.

Appeal from Teller County Court; A. I. Frost, Judge.

Action by John B. Baker against the Re becca Gold Mining Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

M. B. Carpenter and John A. Deweese, for appellant. J. Maurice Finn and Temple &

Crump, for appellee.

GODDARD, J. This is an action to recover for services rendered by appellee, plaintiff below, as watchman upon the property of the The complaint appellant, defendant below. alleges that the defendant on the 24th of June, A. D. 1901, employed the plaintiff to watch, guard, look after, and protect all the personal property situate upon certain mining claims (describing them), for which services the defendant agreed to pay plaintiff the sum of $3 per day; that plaintiff has been constantly employed guarding, watching, and looking after the said premises, at the special instance and request of defendant, for the period of 379 days, the total value of which work amounts to $1,137; that defendant at divers times paid plaintiff sums aggregating $286.40, leaving a balance of $850.60 still due and unpaid. Defendant answered, deuying the allegations of the complaint. The cause was tried to a jury. The testimony disclosed that plaintiff went to work upon the property the 24th of June, 1901; that on 'December 21, 1901, he was discharged, and upon settlement then had there was due him $415. As to what occurred at that time, plaintiff testifies, inter alia, as follows: "Mayhew [who was manager for the company, and by whom plaintiff was employed] said to me: 'John, you can go down home. Your time is up here.' 'Well,' I says, 'all right. Who is going to pay me? * * *' He says: 'Burbridge was to pay this debt.' Well, I told him he was never known to pay anything. I said: 'I am going to stay here until I get my money.'" He further testified that, when the time was reckoned up and the settlement made, Mayhew said: "John, you go back up to the mine and stay there until Burbridge pays you, and keep track of your time." This conversation was denied by Mayhew in toto, who further testified that he did not reemploy the plaintiff after December 21, 1901, but that he turned the possession of the prop

erty over to a Mr. May for Burbridge and associates under lease; that he never recognized plaintiff as watchman after December 21st. Defendant also offered in evidence a lease executed by the company to Burbridge under which it is claimed that possession of the premises was turned over to him on December 21, 1901. This offer was rejected.

We think the court erred in excluding this evidence. The execution of such a lease, and the entry into possession of the premises by the lessee thereunder was very persuasive, if not conclusive, evidence that the services of the plaintiff as a watchman were no longer needed in behalf of the company, and that fact would strongly corroborate defendant's claim that there was no re-employment of the plaintiff, as claimed by him. Furthermore, it is evident from plaintiff's own testimony that he was influenced in his action in remaining upon the property after December 21st by reason of his mistaken notion that he was justified in doing so until his wages were paid, rather than because of a re-employment by the company. But, however that may be, in view of the conflict in the testimony as to the fact of the re-employment, the defendant was entitled to the benefit of the evidence offered, and its exclusion necessitates a reversal of this judgment. Reversed.

GABBERT, C. J., and BAILEY, J., concur.

(38 Colo. 364)



2 Mills' Ann. St. § 2679, providing that the party praying for an appeal shall, within 10 days from the judgment, enter into a bond with security to be approved, is mandatory and jurisdictional, and, unless an appeal from a justice. is taken within the statutory period as therein provided, the court has no jurisdiction, and it must be dismissed either on motion of appellee or on the court's own motion.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 31, Justices of the Peace, § 530.]

Appeal from Prowers County Court; L. F. Blodgett, Judge.

Action by J. C. Horn against W. E. Martin. From a judgment in the justice's court, plaintiff appeals. From an order in the county court refusing to dismiss the appeal, defendant appeals. Reversed.

J. C. Horn, in pro. per.

GODDARD, J. This action was originally brought before a justice of the peace. On May 23, A. D. 1902, the cause was tried, and judgment rendered against defendant for costs. An appeal bond, in many respects defective, was approved by the justice of the peace the 3d day of June, 1902. the county court the appellee, defendant 87 P.-68

below, appearing for that purpose only, moved the court to dismiss the appeal on the ground that the appeal bond was not filed and approved in conformity with the requirements of section 2679, 2 Mills' Ann. St., which, inter alia, provides: "The party praying the appeal shall, within ten days from the rendition of the judgment from which he desires to take an appeal, enter into bond, with security to be approved and conditioned as hereinafter provided.

The court denied this motion. The statute above referred to is mandatory and jurisdictional, and must be strictly complied with,. and, unless an appeal is taken within the statutory period, as therein provided, the court has no jurisdiction, and the appeal is void for all purposes, and will be dismissed either on motion of appellee or on the court's own motion. In such case the court has no power to make any other order than that of dismissal. 2 Ene. Pl. & Pr. 239, and cases cited.

The court erred in denying the motion. The judgment is reversed, and the cause remanded, with directions to dismiss the appeal. Reversed.

GABBERT, C. J., and BAILEY, J., concur.

(38 Colo. 104)


In a proceeding by a landowner to change his point of diversion to a point higher up on the stream, as authorized by Laws 1903, p. 278, owners of land below the point of the original intake cannot object that the owners of lands between the old and new point of diversion have been injuriously affected by the change.

Appeal from District District Court, Saguache County; Chas. C. Holbrook, Judge.

Proceedings by David E. Glasgow to change the point of diversion of plaintiff's right to use the water of a creek to a place higher up the stream, to which J. J. Crippen filed objections. From a decree in favor of petitioner, Crippen appeals. Affirmed.

Hodges, Arlson & Hodges, for appellant. John 1. Palmer, for appellee.

CAMPBELL, J. This is a special proceeding under the act of 1903 (Session Laws 1903, p. 278), having for its object a change, to a place higher up the natural stream, of the point of diversion of the petitioner's right to the use of water from San Luis creek in water district No. 25. The substantive part of this act recognizes, and gives legislative sanction to, the right which theretofore existed of changing the point of diversion, if the rights of other appropriators are not injuriously affected. The exclusive method or remedy for enforcing the right is therein prescribed. If it appears upon hearing of the

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