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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. POIN

DEXTER, 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.

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 issue 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 apreal 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.

ROOT, J. This is an original application for a writ of habeas corpus directing and commanding the above-named respondent ko deliver, or to direct the delivery of, the possession, custody, and control of Roy Elliott Pierce and John Edgar Pierce, two minors, to the abore-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

125, 6/6 Pac. 123. But such a matter is not timony was offered at the trial tending to before us at this time. Relators are basing show the habits and mental condition of the their right to the immediate possession of deceased. The witnesses on the part of th: said children upon the supersedeas bond appellant testified that he was generally ingiven as aforesaid. The giving of said bond toxicated, that his looks and actions were does not entitle them to such possession. strange and peculiar at times, and that in The application for the writ is denied. their opinion he was insane. On the other

hand, witnesses on the part of the respondMOUNT, C. J., and DUNBAR, HADLEY, ents, who had known the deceased intimately and FULLERTON, JJ., concur. RUDKIN for years prior to his death, testified that he and CROW, JJ., not sitting.

was sound of mind and temperate in his habits. A review of this confiicting testi

mony would serve no useful purpose, and we (45 Wash. 55)

content ourselves by simply announcing our In re RATHJENS' ESTATE.

conclusion that the finding of the court on RATHJENSV. MERRILL et al.

the question of testamentary capacity is (Supreme Court of Washington. Dec, 15, 1906.) fully sustained by the testimony. There was 1. WILLS VALIDITY — UNDUE INFLUENCE testimony tending to show that the testator SUFFICIENCY OF EVIDENCE.

was sane at all times, and was rarely, if In a will contest, evidence held insufficient

ever, intoxicated; and, if we were to concede to show that the will was procured by undue

that he was intoxicated and insane at ininfluence. 2. SAME PROBATE COSTS ALLOWANCE

tervals, yet there is ample testimony to OUT OF ESTATE.

show that he was both sane and sober at Where the unsuccessful contestant of a

the time of the execution of this will. The will claimed under one will, and the respondents claimed under another, the court properly

charge of undue influence on the part of the declined to award costs to the contestant out respondents and the brothers of the respond of the estate.

ent Weise finds its chief support in the fact [Ed. Note.-For cases in point, see Ceni. Dig.

that those parties espoused the cause of the vol. 49, Wills, 88 877, 878.]

deceased in a divorce proceeding instituted Appeal from Superior

Superior Court, Spokane against him by the appellant some two years County; Henry L. Kennan, Judge.

before his death and made affidavits in his Will contest by Amelia Rathjens against behalf. F. S. Merrill, as administrator with the will There was testimony also—some of it from annexed of Jacob Rathjens, and others, doubtful sources-tending to prove declaraFrom a judgment in favor of defendants, tions and statements alleged to have been plaintiff appeals. Affirmed.

made by the deceased, by the respondents. A. C. Shaw and John C. Kleber, for ap

and by the brothers of the respondent Weise pellant. Graves, Kizer & Graves, for re

in relation to the appellant and in relation to

the property of the deceased. The making spondents.

of such statements is denied, except the

statements attributed to the deceased, and RUDKIN, J. This is an appeal from an order dismissing a will contest. A suflicient

it is a significant fact that in all his letters

to the appellant, in which he deplored their statement of the case will be found in the

estrangement and separation, the deceased opinion of this court on a former appeal, where a judgment of nonsuit was reversed.

never so much as referred to his brothers-inRathjens v. Merrill, 38 Wash. 442, 80 Pac.

law as the authors of his woes. But the

conduct of the deceased himself both be754.

fore and after the execution of the will in The grounds of the contest were undue influence and want of testamentary capacity

controversy here rebuts even the slightest resulting from intemperance and insanity.

inference of undue influence. He was in No claim of a general lack of testamentary

Davenport, miles away from those who are capacity was advanced by the appellant at alleged to have influenced his acts and conthe trial. Indeed, her own conduct pre

duct, for the greater part of the two months cluded her from advancing any such claim,

immediately preceding the execution of this inasmuch as the testator executed a will in

will. He left Davenport for Spokane, deher favor only 17 days before the execution claring to some of his friends that he was of the will now under contest, and that will going to execute a will in favor of the reshe caused to be probated, proving to the spondent Weise, to others that he was going satisfaction of the court that at the time of to will his property to his friends. In the its execution the testator was of sound and note written immediately before inflicting tile disposing mind and memory. It was practi wound which afterwards resulted in his cally conceded, therefore, that the testator death,' and which he doubtless intended as was sober at times, and had lucid intervals, his last communication in life, he declared during which he had sufficient mind and that he was about to shoot himself on aamemory to enable him to comprehend the na count of his wife; that all she was after ture and extent of his property and to recol was his property; that she thought he w&S lect the objects of his bounty. Much tes so dumb that he did not know it; and that

all his property was for the respondent

the respondent , a corporation may, in its own name, maintain an Weise. Between the time he received his mor action to recover such property. tal wound and the time of his death, some

2. SAVE-ISSUES.

In replevin by a corporation for its records weeks thereafter, he repeatedly declared that

and seal, defendant answered that he was the he had willed his property to the respondent secretary thereof, which the corporation by repliWeise, and expressed satisfaction with the cation denied. The corporation proved that the disposition made. Counsel argue that the

property belonged to it, and that delivery thereof

had been refused after demand. There was no fact that the deceased made two wills with

other evidence. Held not to present any quesin a period of 17 days, naming different dev tion as to the right to the office of secretary isees, is evidence of mental incapacity or

of the corporation. undue influence. It might be convenient to

3. EVIDENCE-SECONDARY EVIDENCE-CORPO

RATE OFFICERS. attribute a change of mind which cannot be

In replevin by a corporation for its records otherwise satisfactorily accounted for to in and seal, a person may testify that he was sanity, drunkenness, or undue influence, but the general manager of the corporation, and this we are not at liberty to do. We know

as such made a demand for the delivery of the

property, which was refused, as against the not what hopes or promises may have in

objection that parol proof was inadmissible to duced the deceased to execute the will in prove that the witness was an officer of the favor of the appellant. If we did, the mys

corporation.

4. EVIDEXCE-PRESUMPTIONS. tery surrounding the change of beneficiaries

The manager of a corporation is presumed might be solved.

to act with the authority of the corporation Again, it is argued that it is unnatural that when making a demand for the possession of the husband should disinherit the wife, in

its property. view of the number and character of the

Appeal from District Court, El Paso Counletters written to her within the few months

ty; Louis W. Cunningham, Judge. preceding his death. The answers to these

Action by the Alert Gold Mining Company letters, or a failure to respond to his re

against J. W. D. Stovell. From a judgment peated appeals for a reconciliation, miglit

for plaintiff, defendant appeals. Affirmed. afford some explanation of a change of mind and heart. It is impossible to read the rec

'W. K. Brown, for appellant. Gunnell, ord in the first divorce suit, with its charges Chinn & Miller, for appellee. and counter charges, the record in the second divorce suit, the threat from the attorney for

STEELE, J. Claiming to be the owner and the appellant to the deceased a few days entitled to the immediate possession of cerbefore his death, that, if he did not obtain tain personal property, consisting principally a decree of divorce from the appellant in

of its record books and seal, the Alert Gold the pending suit, she would amend her an Mining Company brought suit in replevin for swer and pray for one, the note written by the recovery of the possession of the property the deceased at the time of his attempt to and for damages for the detention of the same commit suicide, and then declare that the against John D. Stovell, who, it was alleged, conduct of the deceased was either unseemly wrongfully detained it and refused to deor unnatural.

liver it upon demand. The answer avers that Lastly, it is contended that the court erred defendant, Stovell, is the duly qualified and in not allowing the appellant her costs in the acting secretary of the company, and as such, court below. Conceding that a court may

under the statutes of the state and the byin its discretion allow an heir who unsuccess laws of the company, is the proper custodian fully contests his ancestor's will costs out of of its record books and seal, and that said the estate, yet in this case, where the ap

property was in the possession of the company pellant claimed under one will and the re at the time the suit was instituted. The repspondents under another, the court properly lication denies that the defendant is, or at declined to award costs to the unsuccessful

the time of the commencement of the suit was, contestant. For a like reason, her prayer

the secretary of the company, and denies that for costs in this court is disallowed.

the company was in the possession of the The judgment of the court below is free property, through its secretary or otherwise, from error and should be affirmed, and it is at the time of the commencement of the suit. so ordered.

A witness for the plaintiff testified that the

property in question was the property of the HADLEY, FULLERTON, and CROW, JJ., corporation; that he was a director and the concur. MOUNT, C. J., and DUNBAR, J.,

general manager, and had made a demand upnot sitting.

on the defendant for the property; and that defendant had declined to deliver it to the

company. After motion to strike out all the (38 Colo. 80)

testimony was denied, plaintiff rested. The STOVELL V. ALERT GOLD MINING CO.

defendant offered no testimony. Judgment

was rendered for the return of the property, (Supreme Court of Colorado. Dec. 3, 1906.)

and the defendant appealed to the court of 1. REPLEVIN-RIGHT OF ACTION-ACTION BY

appeals. CORPORATION. Though the secretary of a corporation is

The appellant contends that the court erred by law the custodian of its records and seal, in appointing a custodian of the property,

pending the litigation. We shall not discuss

(38 Colo, 289) the question raised, for the reason that the or REBECCA GOLD MINING CO., Limited, v. der made did not determine the rights of the

BAKER. parties.

(Supreme Court of Colorado. Dec. 3, 1906.) It is contended that, as the secretary of the MASTER AND SERVANT – ACTION FOR COMcorporation is by law made the custodian of PENSATION--EVIDENCE--ADMISSIBILITY. the records and seal, he alone is authorized to

On an issue as to whether plaintiff, who

was employed by defendant, the owner of a mine, bring a suit for the possession thereof. It

as a watchman, was re-engaged after having is entirely probable that the secretary of a been discharged, evidence of the execution of a corporation could maintain a suit of replevin

lease of the mine and entry of the lessee on the

day of the discharge was admissible as tending to recover possession of such of the company's

to show that plaintiff's services were not reproperty as he is entitled to the possession of, quired after the discharge. but, as the property of which he is the cus

Appeal from Teller County Court; A. I. todian is the property of the corporation, we

Frost, Judge. know of no reason why the corporation itself

Action by John B. Baker against the Re may not maintain an action to recover its

becca Gold Mining Company. From a judgproperty. We think there is nothing in the

ment in favor of plaintiff, defendant appeals. defendant's contention, and that the suit was

Reversed. properly brought by the corporation.

It is next contended that the real contro M. B. Carpenter and John A. Deweese, for versy was over the office of secretary of the

appellant. J. Maurice Finn and Temple & company, and authorities are cited holding Crump, for appellee. that the right to an office cannot be tried in an action of replevin. There is no such ques

GODDARD, J. This is an action to recov

er for services rendered by appellee, plaintiff tion presented by the record. It does not ap

below, as watchman upon the property of the pear from the testimony that any one held

appellant, defendant below. The complaint the office of secretary of the corporation. The

alleges that the defendant on the 24th of (lefendant alleged in the answer that he was

June, A. D. 1901, employed the plaintiff to then, and was at the time of the bringing of

watch, guard, look after, and protect all the the suit, the secretary of the company, but

personal property situate upon certain mining this was denied by the replication. The

claims (describing them), for which services plaintiff proved that the property belonged

the defendant agreed to pay plaintiff the sum to the corporation, that delivery thereof had

of $3 per day; that plaintiff has been conbeen refused after demand, and rested. The

stantly employed guarding, watching, and defendant did not cross-examine plaintiff's

looking after the said premises, at the spewitnesses, and offered no testimony, and there

cial instance and request of defendant, for the was no question of the kind now raised pre

period of 379 days, the total value of which sented to the trial judge.

work amounts to $1,137; that defendant at It is next contended that the court received

divers times paid plaintiff sums aggregating incompetent and secondary evidence. The

$286.40, leaving a balance of $850.60 stil court, over the objection of the defendant,

due and unpaid. Defendant answered, denypermitted a witness to testify that he was an

ing the allegations of the complaint. The officer of the corporation and that a demand

cause was tried to a jury. The testimony was made by him for the delivery of the prop

disclosed that plaintiff went to work upon the erty. The objection was that the records

property the 24th of June, 1901; that on Dewere the best evidence of who the company's

cember 21, 1901, he was discharged, and upon officers were, and that no authority from the

settlement then had there was due him $415. board of directors for making the demand was

As to what occurred at that time, plaintiff shown. The position of counsel is untenable.

testifies, inter alia, as follows: "Mayhew The title to the office of manager was not in

[who was manager for the company, and by dispute, and the authorities are numerous,

whom plaintiff was employed] said to me: when the title to an office is involved only

'John, you can go down home. Your time is incidentally, that parol proof is not objec

up here.' 'Well,' I says, 'all right. Who is tionable, and that the fact of the existence of

going to pay me?

*) He says: 'Burthe corporation, or the fact that one is an

bridge was to pay this debt.' Well, I told officer of the corporation, may be proved by

him he was never known to pay anything. one who knows the fact. The manager is pre

I said: 'I am going to stay here until I get sumed to have acted with the authority of the

my money.'” He further testified that, when corporation in making demand for the pos

the time was reckoned up and the settlement session of its property, and there was nothing made, Mayhew said: “John, you go back up shown which overcomes this presumption. to the mine and stay there until Burbridge There being no error disclosed by the rec

pays you, and keep track of your time." ord, the judgment is affirmed.

This conversation was denied by Mayhew in

toto, who further testified that he did not reThe CHIEF JUSTICE and CAMPBELL, employ the plaintiff after December 21, 1901, J., concur.

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 21 st. 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.

below, appearing for that purpose only, mored 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 Vills' 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 jurisdietional, 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 Enc. 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.

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

(38 Colo. 364)

HORN V. MARTIN. (Supreme Court of Colorado. Dec. 3, 1906.) JUSTICES OF THE PEACE-APPEAL-STATUTORY TIME FOR APPEAL.

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.

(38 Colo. 104) CRIPPEN v. GLASGOW. (Supreme Court of Colorado. Dec. 3, 1906.) WATERS AND WATER COURSES-IRRIGATIONPOINT OF DIVERSION--CHANGE.

In a proceeding by a lançowner 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.

Ilodges, Irlson & lIodges, for appellant. Jolin l. Palmer, for appellee.

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.

In the county court the appellee, defendant

87 P.---68

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, vf the point of diversion of the petitioner's right to the use of water from San Luis creek in water district No. 23. 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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