the act of 1880, is clearly shown to be a de- | ular or special elections, when it passed the sire to prohibit the sale of intoxicating liq- prohibitory law respecting the sale of liquor uor on the day of any election in the territory, whether such election be general or special. This act has never been repealed, and the Legislature has simply reaffirmed its intention to prohibit the sale of intoxicating liquor on election day by the passage of that section of the act of 1891, referred to supra as section 4138, C. L. 1897.

Are we to assume that, because the word "special" does not appear in the second act, the Legislature intended to prohibit the sale of liquor on the day of one territorial election, and to permit the sale on the day of a similar election, simply because it was a special election? On the other hand, was it not within the intention of the Legislature, and the very reason for the passage of the laws in question, that on the occasion for the exercise of the highest franchise of a people, the right of suffrage, the public might be protected against the disorder that may result from the unrestrained sale and use of intoxicating liquor; that the polling places, where the public, of necessity, gathers on such days, might be free of rowdyism, and not the resort of intoxicated or disorderly persons; that no person should exercise his high privilege while deprived of his reason or natural intelligence.

on the day of any general election. It had in mind such elections as were common to the people of the territory, as distinguished from a local election. It cannot be argued that the reasons pointed out for the existence of the law are any less applicable to an election for delegates to a constitutional convention than to an election for a congressman or county officer.

While fully appreciating the strict interpretation to which the defendant is entitled in the construction of statutes of this class, we cannot indulge in the violent presumption that the Legislature intended to classify elections which, though general in the sense that they might be coextensive with the boundaries of the state, or territory, yet being special, were not to be subject to the same restrictions and safeguards as are thrown about the so-called "general election."

We find no other interpretation of the meaning of the term "general election," as used in section 4138, consistent with the intent of the Legislature, as we interpret it, and sound public policy, than that a general election, referred to in said section, is one that is held throughout the entire state, or territory. See McKin v. State, 62 Md. 244246, and Downs v. State, 78 Md. 128-131, 26 Atl. 1005.

It may be said that these reasons are good, and doubtless furnish the object which inspired the Legislature in the passage of the [2] The election of September 6, 1910, for acts referred to, but that the Legislature delegates to the constitutional convention has limited the application of the second act was held in every county and precinct of the by the use of the words "general election," | territory of New Mexico, and was as general because we have but one general election, as any November election ever will be, or viz., the biennial election of November. ever has been, and in our opinion was such

[1] The statutes and Constitutions of an election as comes within the purview of many states have defined one particular elec-section 4138. tion as the general election. This was not In view of our opinion, the judgment of done in New Mexico until the adoption of the district court is reversed, and the cause our Constitution, though the term "general remanded for further proceedings; and it is election" appears in a number of our elec- so ordered. tion laws. In our opinion the Legislature was not attempting to distinguish between different kinds of elections, or between reg- cur.

ROBERTS, C. J., and PARKER. J., con

The fact that the address of the company which purchased mortgaged premises for an-ed January 22, 1907. other was changed from Kansas City to St. Louis, to the knowledge of the one for whom the premises were purchased and of the purchaser of the secured note, and such persons did not communicate such fact to the public trustee, did not constitute fraud or conspiracy, though notice of foreclosure was mailed to the company at Kansas City; it being such company's duty to keep advised as to proceedings under the trust deed, the execution of which it knew.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 1063-1067; Dec. Dig. § 356.*]

In Banc. Error to District Court, Denver County; Hubert L. Shattuck, Judge.

Action by William L. Watkins, receiver of the Home Co-Operative Company, against W. W. Booth and others. Judgment for defendants, and plaintiff brings error. Affirmed.

R. A. Crossman, of Pueblo, for plaintiff in error. Henry J. Hersey, of Denver, for defendants in error.

Mo., the address given in the trust deed to secure its claim. The sole requirement of the statute in this respect is: "The trustee shall mail a copy of the printed notice of sale, so soon as the same shall be printed, to the grantor and all subsequent incumbrancers at the address given in the trust deed without extra charge."

The advertisement having been properly made, there was a full compliance with the

law.

from the files, and the county court had no jurisdiction to try the case.

[Ed. Note.-For other cases, see Justices of Dec. Dig. § 161.*] the Peace, Cent. Dig. §§ 592–599, 601, 602, 604;

Error to Routt County Court; Charles A. Morning, Judge.

Action by D. C. Williams against Lizzie Bailey. There was a judgment for plain

tiff rendered by the county court on appeal from a judgment for plaintiff by a justice Reversed and remanded, with directions to of the peace, and defendant brings error. dismiss the action.

Arthur L. Wessels, of Steamboat Springs, for plaintiff in error. Ernest W. Norlin, of Oak Creek, for defendant in error.

The Co-Operative Company knew of the Gallup note and trust deed. In fact, the trust deed given to secure its claim was made subject to it. It therefore knew of the time of maturity of the former. Watkins, the receiver, was the president of the company when the Cain notes and trust deed were executed. It GARRIGUES, J. This action was comwas the duty of the company and the receivmenced before a justice of the peace. The er to keep advised as to proceedings in case Session Laws of 1903, at page 301, provide of the former trust deed. At least, either that previous to the commencement of any Watkins as president of the company, or as trial before a justice of the peace the dereceiver, could have advised the public trus- fendant may make oath that it is his betee as to the change of residence and ap-lief that he cannot have a fair and impartial pointment of a receiver. The case appears trial before such justice; whereupon it shall as one of neglect on the part of the plaintiff be the duty of the justice, upon payment rather than fraud on the part of the defend- of his fees for such change of venue only.

ants.

The judgment is affirmed.

(55 Colo. 95)

BAILEY v. WILLIAMS.

(Supreme Court of Colorado. June 2, 1913.) 1. JUSTICES OF THE PEACE ($$ 73, 74*) CHANGE OF VENUE-STATUTES.

Under Laws 1903, p. 301, authorizing defendant, prior to the trial before a justice of the peace, to make oath that he believes that he cannot have a fair trial, whereupon the justice, on the payment of fees for change of venue, must transmit the papers to the next nearest justice, a justice, on defendant filing the affidavit and tendering the statutory fees for the change, is without jurisdiction, except to transfer the case to the next nearest qualified

justice.

to immediately transmit all papers and documents belonging to the suit to the next nearest justice of the peace, who shall proceed as if the suit had been instituted before him.

On the day of the trial the defendant, plaintiff in error, appeared and filed this statutory affidavit and asked for a change of venue, tendering the fees for the change. The application was denied; whereupon defendant left the justice's office and took no further part in the proceedings. The justice rendered a judgment against her, and she appealed the case to the county court, where she entered a special appearance for that purpose only, and moved to have it dismissed upon the ground that the justice of the peace was without jurisdiction to render any judgment after she filed a motion for a change of venue and that the county Court had no further or other jurisdiction than the justice from whom the appeal was Where a justice erroneously denied de- taken. The counsel who represented her in fendant's application for change of venue and in the justice court was not authorized to rendered judgment against defendant, who took no further part in the case before the justice, appear for her in the county court; she and who appealed to the county court and ap- having employed other counsel to represent peared specially to move to dismiss for want her there. A stipulation was filed in the of jurisdiction of the justice to render judg-county court signed by plaintiff's counsel ment, the county court must dismiss the action. and the attorney who represented defendant [Ed. Note.-For other cases, see Justices of in the justice court, setting the case for the Peace, Cent. Dig. § 726; Dec. Dig. § 187.*]

[Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. §§ 236-242; Dec. Dig. §§ 73, 74.*]

2. JUSTICES OF THE PEACE (§ 187*)-APPEAL

-JURISDICTION.

3. JUSTICES OF THE PEACE (§ 161*)—APPEAL APPEARANCE.

A stipulation, signed by counsel for plaintiff and the attorney representing defendant in justice's court, which sets the case for trial in the county court on defendant's appeal, is not a general appearance by defendant, where the attorney was without authority to act for defendant, who without entering a general appearance caused the stipulation to be stricken

trial. Neither the defendant, nor the counsel who represented her in the county court, had any knowledge of this stipulation until after it was filed, and the attorney who signed it on her behalf was without authority to represent her. As soon as her counsel in the county court learned of its existence, he appeared specially and moved to strike it from the files, which motion was

granted. Defendant's motion in the county court to dismiss the action was denied, she refused to further appear, judgment was entered against her, and she brings the case here on error.

[1, 2] 2. When plaintiff in error filed her affidavit asking for a change of venue, and tendered the statutory fees for the change only, the justice was without further jurisdiction in the matter, except to transfer the case to the next nearest qualified justice, as provided by the statute. On appeal to the county court, the motion of plaintiff in error, who appeared specially for that purpose only, to dismiss the action should have been sustained. Otero County v. Hoffmire, 9 Colo. App. 526, 49 Pac. 375.

CUNNINGHAM, P. J. Appellant brought his suit in the district court in ejectment. The defendant answered, claiming title to the land involved under and by virtue of a tax or treasurer's deed. Trial was had to the court without a jury. Judgment was rendered in favor of the defendant, appellee here. There appears from the brief to be no dispute concerning the facts involved. The appellant relies for a reversal upon three propositions, all going to the validity of the tax deed. We shall notice but one of the contentions upon which appellant relies, since in our view of the case a proper disposition of this proposition effectually and completely disposes of the appeal. The land here involved, and which the treasurer of the county attempted to convey by tax or treasurer's deed to appellee, Hapney, was described on the assessment roll for the year 1898 (it was sold for taxes for the year 1898 on December 11, 1899) as follows: "S. W. Quarter of sec. 7, town 38, N. R. 11, E. N. M. M. containing 160 acres." In the tax deed to Hapney the treasurer described the land as: "The southwest 14 of section 7, township 38, range 11 east, of the New Mexico Principal Meridian, situated in the county of Costilla,' state of Colorado." Following this description, the treasurer in said deed states that he ex

[3] It is argued by defendant in error that defendant appeared generally in the county court, thereby conferring jurisdiction upon the court. An examination of the record does not sustain this contention. Nothing was done by plaintiff in error that could be construed to be a general appearance, unless it was the stipulation filed in the county court agreeing that the case might be set down for trial; but as it appears that this was filed without authority, and the defendant, without entering a general appearance, caused it to be stricken from the files, it cannot be construed to be such an appear-posed to public sale "the real property above ance as would confer jurisdiction upon the court to try the case.

The cause will be reversed and remanded, with directions to the lower court to dismiss the action.

Reversed.

MUSSER. C. J., and SCOTT. J.. concur.

(24 Colo. App. 202)

CALLBREATH v. HAPNEY.
(Court of Appeals of Colorado. May 12, 1913.)
TAXATION ( 627*) — NOTICE OF SALE-DE-
SCRIPTION OF PROPERTY.

Under Laws 1891, p. 286, Mills' Ann. St. § 3882, requiring a county treasurer to make out a list of lands subject to sale, describing them as described on the tax roll, where the quantity of land described in the list as published and as posted in the treasurer's office was different, and both differed from the quantity stated in the tax roll and abstract of assessment, there was a substantial departure from the statutory requirement, even though the description was the same.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. § 1280; Dec. Dig. § 627.*]

King, J., dissenting.

Appeal from District Court, Costilla County; Charles C. Holbrook, Judge.

Action by James F. Callbreath, Jr., against William R. Hapney. Judgment for the defendant, and plaintiff appeals. Reversed and remanded.

Charles F. Carnine, of Denver, for appellant. Jesse Stephenson, of Monte Vista, for appellee.

described," and again, further on in the said
deed, the treasurer states that, the said Hap-
ney "having offered to pay the sum of $7.72
for the whole amount of taxes, interest, and
costs then due and remaining unpaid on said
property for the whole of the above-described
property,
the said property was
stricken off to him at that price," etc. From
which it would appear that the treasurer
attempted to convey the full quarter section
of land, or 160 acres, to Hapney.

The abstract of assessment for the year 1898 described the land in the same manner that it was described in the assessment roil, denominating it as 160 acres. In the notice of sale (1. e., the tax sale) and the delinquent tax list for the year 1898, attached to the publisher's affidavit, the land involved is described as follows: "SW. Qr. sec. 7 township 38 range 11, 36 acres." The notice of sale and the delinquent tax list for the year 1898, which the county treasurer posted on the outer door of his office, according to the affidavit of the deputy treasurer, which was introduced in evidence, described the land as: "S. W. Qr. sec. 7, township 38, range 11, 60 acres." (The italics are ours.) It will be seen that there are three differing descriptions of the land in question running through the record, beginning with the assessment roll and ending with the deed. Once the land is described clearly as consisting of 160 acres. Inferentially it is so described in the deed. The published notice of sale describes it as 36 acres, according to the affi

premises by virtue of the tax deed, and such
offer would therefore have been unavailing.
[Ed. Note. For other cases, see Pleading,
Cent. Dig. §§ 1343-1347; Dec. Dig. § 403.*]

Appeal from District Court, Yuma County;
H. P. Burke, Judge.

Action by Lardner Howell against Lincoln R. Scott. Judgment for plaintiff, and defendant appeals. Affirmed.

davit of the publisher, while the notice post-ed that he claimed to be the owner of the ed by the county treasurer describes the land as consisting of 60 acres. We are clear'y of the opinion that this misdescription of the property is, under the statute then in force, fatal to the validity of the sale and to the deed issuing thereunder. The Session Laws of 1891, p. 286, which will be found in Mills' Annotated Statutes, § 3882, requires that: "The county treasurer shall before the 20th day of August in each year, make out a list of all lands and town lots subject to sale, describing such lands and town lots as the same are described on the tax rolls." (Our italics.) This, it will be seen, the treasurer did not do, since the tax roll described the land as containing 160 acres instead of 36 acres, as the description in the published

list reads. This was clearly a substantial departure from the statutory requirement.

The judgment is reversed, and the case remanded for further proceedings in harmony with the views herein expressed. Reversed and remanded.

KING, J., dissents.

(24 Colo. App. 155)

SCOTT v. HOWELL.

(Court of Appeals of Colorado. May 12, 1913.)
1. TAXATION ($817*)-TAX DEEDS-ACTIONS
TO CANCEL-COMPLAINT.
In an action to annul a tax deed as a cloud
on plaintiff's title, the failure of the complaint
to allege that the tax deed was recorded would
be disregarded on appeal, where the evidence
showed that it was recorded, and the case was
tried as though that fact was alleged, since, if
the defect had been pointed out to the court
below, the complaint could have been amended
to correspond to the proof.

R. H. Gilmore, of Denver, for appellant. John F. Mail, of Denver, for appellee.

MORGAN, J. Appeal from a judgment for plaintiff in an action to remove a cloud from title, annulling a tax deed, and removing the cloud created thereby from the title, to two half sections of vacant and un

occupied land.

Appellant contends that the complaint did not state facts sufficient to constitute a cause of action, because it did not allege that the tax deed was recorded, because the allegations attacking the tax deed were mere conclusions of law, and because the complaint did not contain an offer to refund the taxes paid by defendant.

[1] It is true it was not, although it might have been truthfully, alleged that the deed was recorded. However, plaintiff's testimony disclosed that the deed was recorded, and such proof was made without any objection being interposed that pointed out this specific defect in the complaint, although objection was interposed that the complaint did not state facts sufficient to constitute a cause of action. Furthermore, defendant's counsel, in his objection, stated that "it is alleged in the complaint and admitted in the answer that the deed was made on the 6th day of March, 1899, and recorded on the same 2. APPEAL AND ERROR (§ 193*)-REVIEW-day in Book 1299, page 213, of the said QUESTIONS NOT RAISED BELOW.

[Ed. Note. For other cases, see Taxation, Cent. Dig. § 1617; Dec. Dig. § 817.*]

Although the objection that a complaint does not state facts sufficient to constitute a

cause of action may be raised at any time, yet when the specific objection is first pointed out on appeal it is looked upon with disfavor.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1226-1238, 1240; Dec. Dig. § 193.*]

3. APPEAL AND ERROR (§ 236*)-OBJECTIONSPLEADING NECESSITY OF MOTION.

A complaint in an action to cancel a tax deed, alleging that certain things required by statute were not done "as required by law," was not insufficient as merely alleging a conclusion of law, where it alleged sufficient facts without the words quoted, and no motion to require the allegations to be made more specific was made, although the complaint should have stated and pointed out the exact defects in the proceedings.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1384, 1385; Dec. Dig. § 236.*]

4. PLEADING (§ 403*)-TAX DEEDS-ACTIONS TO CANCEL COMPLAINT.

A complaint, in an action to cancel a tax deed, was not insufficient because of the omission of an offer to refund the taxes paid by defendant, where defendant admitted and alleg

Records." This statement of counsel discloses that the case was tried as though it had been alleged in the complaint that the deed was recorded; and it discloses, also, that counsel could not have had in his mind at the time he made the objection the lack of this particular allegation. His objections also were specifically stated to be concerning the want of sufficient allegations, as to the reason why the affidavit of publication was not made as provided by law, and to the lack of any offer in the complaint to pay or refund the taxes to defendant which he had paid. If this defect had been sufficiently pointed out to the court, an amendment could have been inserted in the complaint that the deed had been recorded, so as to make the pleadings correspond to the proof. If this cause should be reversed, the amendment could be allowed, and nothing would be gained by appellant, and we think this defect in the complaint, if it was not cured, should be disregarded.

[2] Although the objection that a com