cember, 1896, sentenced the defendant to be executed at the penitentiary of the state, upon the calendar week beginning Sunday, January 3, 1897. To reverse this judgment the defendant, after some delay, filed a transcript of the record proper and a bill of exceptions in this court, upon which a writ of error was issued, and the judgment of the district court superseded. The attorney gen eral now moves to strike the bill of exceptions from the files, because filed after the lapse of the term at which the judgment was rendered, no order extending the time for filing having been made. The statute in reference to writs of error in capital cases reads as follows: "Any defendant under sentence for a capital offense may have a writ of error to the supreme court upon filing in such court, on or before the commencement of the week of execution, a transcript of the record in the court below, duly certified, with an assignment of errors. In cases wherein a bill of exceptions is necessary to a full understanding of the errors assigned, such bill of exceptions shall also be filed with such transcript. Thereupon the clerk of the supreme court shall issue a writ of error to the trial court and a supersedeas to stay the execution of the sentence of death, provided the supreme court may, for cause shown, extend the time in which any act herein required is to be performed." Laws 1893, p. 128.

James Hoffmire, John Cochran, and David G. Taylor, for plaintiff in error. Byron L. Carr, Atty. Gen., and Calvin E. Reed and George H. Thorne, Asst. Attys. Gen., for the People.

HAYT, C. J. (after stating the facts). The statute of this state, providing for a supersedeas in a capital case, is, perhaps, the most liberal statute in existence. It was prepared by the judges of this court, acting under section 27 of article 6 of the state constitution, and passed by the legislature as prepared. By this statute any defendant convicted of a capital offense may obtain a writ of error by simply filing a transcript of the record proper in this court. The writ of error is issued by the clerk, and made to operate as a supersedeas without further showing, although, if a bill of exceptions is necessary to a full understanding of the errors assigned, such bill of exceptions should also be filed. In this case the transcript of the record and bill of exceptions should have been filed on or before the commencement of the week of execution, to wit, January 3, 1897. The bill of exceptions was not, however, filed until the 16th day of the month of February following, the transcript being filed two days later. The attorney general now moves to strike the bill of exceptions from the files, for the reason that it was not presented or signed during the term at which the trial was had, and no order having been

made for an extension of time. A bill of exceptions in a criminal cause is unknown to the common law; hence the testimony of witnesses, the instructions, and similar matters did not appear in the record; and with us a bill of exceptions is purely a creation of the statute, and if it can be filed after the term it must be by virtue of the provisions of some statute of this state. In the case of Van Houton v. People, 22 Colo. 53, 43 Pac. 137, it was contended that no statute of this state authorized the court to extend the time for filing the bill of exceptions beyond the term. This contention, however, was decided against the state, and it was there held that the statute of 1861 was in force, which permitted the bill to be signed and sealed at any time during the term, or at any time thereafter, to be fixed by the court. This is certainly the most liberal construction that the statute will permit; and it has been frequently held that unless an order is made during the term, extending the time, a bill of exceptions filed after the term cannot be made a part of the record, and cannot be considered for any purpose. Van Houton v. People, supra; Elliott, App. Proc. $$ 800, 801; Smith v. People, 1 Colo. 121; Orman v. Keith, Id. 82; Packard v. Spellings. 3 Colo. 109. It is not contended in this case that the statute authorizes the signing of a bill after the term, without an order therefor made at the term, but the claim is advanced that it was the duty of the trial court to enter such order as a matter of right to the defendant. This contention is based upon the practice of some judges to cause such an order to be entered; but this is a mere matter of favor, and not a matter of right. In this case there was no necessity for such an order, for the reason that under the act of 1893 the bill of exceptions should have been signed by the trial judge, and presented to this court, before the commencement of the week of execution. The record shows that this week of execution commenced on the 3d day of January. The district court was then in session, and was in session for some days thereafter; so that during all the time given by this statute the bill of exceptions might have been signed without any order of court extending the time; and, no application for an extension having been made, it is not unreasonable to suppose that the counsel then engaged in the case were satisfied that the trial had been regular, and that the judgment was proper. It appears that the next term of the district court of El Paso county convened on Monday, the 11th day of January, the week following the week designated as the week of execution. On the 19th of January counsel for the defendant moved for an order of court directing that the bill of exceptions be prepared at the expense of El Paso county. This motion was denied on the day it was presented. It does not appear from the record whether this application was made upon

written or upon oral motion.

Counsel for plaintiff in error have argued in this court that it was by written motion, filed during the trial term, but there is nothing in the record showing that such a motion was filed during that term, or at all. Hence we must conclude that the motion was not made until January 19th, this being the first reference to such a motion disclosed by the record. So that the argument of counsel, to the effect that such a motion made during the September term carried the case over to the January term, must fall for failure of the premises upon which the argument is based. If we were to be guided by our personal wishes in the matter, we would certainly overrule this motion to strike 'out, but the law does not permit this to be done. The statute, as we have said, is the most liberal of any in existence, so far as we are advised, and to construe it as counsel desire in this case would be a usurpation of legislative power by the judiciary, and would result in bringing this beneficent act into disrepute, imperil its existence at the hands of future legislatures, and thereby jeopardize the causes of other defendants convicted of capital offenses. In these circumstances it is our imperative duty to sustain the motion and strike out the bill of exceptions. Motion sustained.

(23 Colo. 523)

BOSTON & C. SMELTING CO. v. REED. (Supreme Court of Colorado. Dec. 21, 1897.) APPEARANCE-WAIVER OF OBJECTIONS-QUESTIONS FIRST RAISED ON APPEAL-SALE OF ORE FROM LEASED MINE-Rights oF PART OWNER OF LEASE -PURCHASER AS TRUSTEE-ACCOUNTING.

1. A general appearance to a petition filed in the original action after final judgment had been rendered therein waives the objection that the proceeding should have been by separate action.

2. The objection that plaintiff's claim is res judicata must be raised in the court below.

3. An estoppel cannot be claimed for the first time on appeal.

4. An objection that there is a splitting of a cause of action must be raised in the trial court.

5. The point that a petition based on a claim against a defendant as receiver proceeds against him personally cannot be first raised on appeal.

6. Petitioner obtained a judgment establishing an interest in a mining lease, and sales of ore were thereafter made, under permission of court, to a smelting company, which, by direction of court, retained for several years, subject to its further orders, a portion of the price equal to petitioner's interest in the ore, and mingled it with its other funds, and used the whole at a profit, but always kept on hand more than the amount of petitioner's interest, and eventually, pursuant to order, paid the same into court. Held, that a trust arose in favor of petitioner, under which the company was accountable for the profits realized from the use of his share from the date of the sale to the date of the payment into court.

Appeal from district court, Lake county. Action by Clinton Reed against John C. Meagher and others to establish an interest in

a mining lease. There was a judgment for plaintiff, and an order allowing defendant to make sales of ore. Sales were thereafter made to the Boston & Colorado Smelting Company, which paid into court the value of plaintiff's interest in the price. On a petition entitled in the original action an order was made requiring the smelting company to further account to plaintiff, and it appeals. Affirmed.

In an action pending in the district court of Lake county, brought by Clinton Reed, as plaintiff, against John C. Meagher et al., as defendants, for the purpose of establishing plaintiff's claim to an interest (alleged to be an undivided one-fourth) in a mining lease upon the Felicia Grace lode, a decree was rendered on December 24, 1884, adjudging that plaintiff was the owner of an undivided 7/32 in the lease, and a like share of the proceeds of ore extracted from the mine. Afterwards, and at the January term, 1890, this court affirmed that decree. 14 Colo. 335, 24 Pac. 681. While the case was in the district court, an interlocutory writ of injunction, at the instance of plaintiff, was issued, restraining the defendants from working the mine or selling ore until the determination of the suit. Subsequently, and on November 26, 1884, and before the trial of the action, by agreement of parties an order was entered modifying the previous restraining writ, which order covered both the ores theretofore mined and thereafter to be extracted, and gave to defendants the right to sell the same upon condition that the net proceeds of the share claimed by the plaintiff be left with the purchaser, "subject to the further order of the court herein." In pursuance of this permissive order, between December 6, 1884, and July 9, 1885, the defendants sold to the respondent herein, the Boston & Colorado Smelting Company, large quantities of ore from said mine, the defendants' share in the net proceeds of which was paid to them, and the 7/32 thereof, which was in dispute in this action, was retained by the company, as the order required. After the judgment was affirmed in the supreme court, and the remittitur sent down, the plaintiff in the action, on July 19, 1890, served upon the smelting company a notice that he would, on the 30th of July, 1890, make an application to the district court for an order upon the company to pay into court the money deposited in its hands under the said order of November 26, 1884. Under this application, on the 30th of July the court made an order decreeing that the smelting company forthwith furnish and file in the court a full and complete statement of account showing the amount of ore delivered by the defendants since the previous order of November, 1884, the value thereof, the amounts paid to the defendants from time to time, and the royalty to the lessors, and that, after deducting from the gross amount realized from such ore the cost of smelting, railroad charges, and royalty, to pay into court the amount of the net proceeds of petitioner's

share. The smelting company, without making any objection thereto, filed in the court on August 7, 1890, its account and statement showing the net value of the 7/32 of the ore to be $17,923.53, and thereupon paid into court said amount of money (which apparently was thereafter turned over to the plaintiff), and received the following receipt, signed by the judge of the court: "Office of the Boston and Colorado Smelting Company. No. 55,995. Argo, Colo., Aug. 7th, 1890. Received of the Boston and Colorado Smelting Company seventeen thousand nine hundred twenty-three 53/100 dollars, in compliance with the order of the district court of the 5th judicial dist. of Colo., dated July 30, 1890, being the amount retained by the B. & C. S. Co. under and in pursuance of the order of said district court dated Nov. 26, 1884, in the case of Clinton Reed vs. John C. Meagher et al. $17,923.53." On the 10th of the following month plaintiff, Clinton Reed, entitling his pleading as in the above case, filed his petition, after service of notice on the smelting company, reciting the decree of the district court rendered in December, 1884, whereby he was adjudged to be the owner of a 7/32 interest in the said lease, and a like interest in the proceeds of all ores mined therefrom, and further reciting the order of November, 1884, that the ores might be sold to the said smelting company, alleged that ores were so sold to it in a large amount in excess of that theretofore (on August 7th) reported by the smelting company, to which he claimed to be entitled. The petition further alleged that said smelting company took and received the funds and the proceeds of the ore belonging to petitioner, so sold to it by the defendants, and appropriated the same to its own use; that such funds so received and appropriated by it were put into its general account, and mixed with its own funds and money, and became and were made part and parcel of the general funds, money, and capital stock of the smelting company, and were so treated and used by it; out of which the plaintiff alleged the company made large gains and profits. He therefore asks that the company be compelled to render an additional account, and show what gains and profits upon such fund the company has made, and, when ascertained, to pay the same over to him. The smelting company, appearing specially, filed a motion to strike the petition from the files, as well as to vacate all orders theretofore made by the court requiring it to account and pay into court the money which it had on hand claimed by the plaintiff, upon the ground that the court had no jurisdiction over the person of the respondent. This motion was overruled by the court, and the smelting company ordered to file its answer to the petition, which thereafter it did, in which it alleged that the account theretofore made by it was a true and just account, and set up the delivery to it by the judge of the court of the receipt (in words as herein before set forth), claiming the same to be a full ac

66

quittance and discharge of said company of all demands of the plaintiff. It denied the appropriation of the funds to its own use, and denied the mingling of the funds with its own, or the receipt of any profits therefrom. It further alleged that it did not sustain in the said action the relation of receiver with reference to the funds in question, but acted merely and solely as a purchaser of the ore that was sold to it by the defendants in the original case under the order of the court to that effect. Upon a hearing of the petition a judgment was rendered against the smelting company in favor of Reed for $4,555.56, this being equal to interest at the rate of 5 per cent. per annum on the $17,923.53 during the time the same was in the possession of the smelting company. This was evidently upon the theory, adopted by the trial court, that the company occupied a trust relation as to the fund in question, and that it made use thereof while the same was in its possession, and derived a profit therefrom. The foregoing statement is deemed necessary, that the real question now before the court may be clearly understood. Without reference, however, to the pleadings which set up the history of the case as above summarized, the case was submitted to the court upon an agreed statement of facts, which, so far as material to the question involved here, is as follows: * * On August 7, 1890, pursuant to the order of July 30, 1890, of which a copy is above set forth, the said smelting company paid into court, upon the receipt of the judge thereof (of which a copy is herein above set forth), the said seven thirty-seconds (7/32) of the value of said ores, amounting to $17,923.53. During all the time from the date of the purchase of said ores to said 7th day of August, 1890, and while the said ores, or the proceeds of the said seven thirtyseconds (7/32) thereof, were in the hands of said smelting company, the said smelting company was carrying on the business of dealing in and smelting ores, and was using its funds in its said business, and was making a profit of five per cent. per annum, and no more, on all its funds invested in its said business. That the said seven thirtyseconds (7/32) of said ores became, upon the purchase thereof by said company, a part of the assets of said company, and the moneys owing therefor were then, and till August 7, 1890, remained, a part of the general funds of the company, and were used by it in the transaction of its business in the same way and manner that it employed its general funds and capital, from whatever source acquired. The said 7/32 of said ore were not paid for by the smelting company at the time of purchase, because, and solely be cause, of the order of the court of November 26, 1884, and because by reason of said order it could not lawfully pay out said 7/32 of the value of said ores until August 7, 1890. The said smelting company at all times subsequent to the purchase of said ores kept on

* *

hand in its treasury more than the sum of $17,923.53, and was at all times prepared and ready to comply with any order of the district court of Lake county for the payment thereof. Dated this 28th day of November, 1892;" and signed, by the respective parties.

Hugh Butler, for appellant. Teller, Orahood & Morgan and Clinton Reed, for appellee.

CAMPBELL, J. (after stating the facts). A large number of errors have been assigned, but these may be grouped for discussion here as in the argument of counsel.

1. The first point made is that it is contrary to the recognized practice in trial courts for the plaintiff to proceed against the appellant company by a petition in the original case after final judgment. His proper course in such a case, as it is said, would have been to bring an independent action against the smelting company as a debtor. Whether, had seasonable objections been properly made by the appellant to the jurisdiction of the district court thus to entertain appellee's petition in the original case, such objection should have been sustained, we are relieved of the necessity for determining; for when the appellant, as the respondent below, in obedience to the petitioner's notice of July 19, 1890, voluntarily entered its general appearance, and complied with the order of July 30th, and filed its account in the original case, and paid into court the petitioner's share of the proceeds of ore bought by it, this unquestionably constituted a waiver of the jurisdictional question here urged, as the subject-matter was clearly within the court's jurisdiction. Hav ing thus once subjected itself to the court's jurisdiction, it could not, upon the second application claiming profits, object that the procedure adopted by petitioner was irregular. Mining Co. v. Gill, 7 Colo. 100, 2 Pac. 5; Railway Co. v. De Busk, 12 Colo.-294, 20 Pac. 752. 2. Another position taken by the appellant is that, since the plaintiff, by his first application to the district court, elected to claim only the proceeds of the ore, and did not specifically ask for profits, he may not thereafter demand interest or profits, for the latter might properly be awarded upon the first application. The points made are: First, the issue concerning profits might have been litigated under the first application, but was not, hence such issue was res adjudicata upon the second application, both as to the original fund and profits; second, that the election to ask only for the proceeds of the sale was a waiver of profits; third, to permit this second application would be to sanction a splitting up of the same cause of action into several suits. If the rules invoked have any application to the facts of this case, appellant has waived its right thereto, for these objections were not taken below, and are now urged for the first time upon this appeal. It was the duty of the smelting company, if it desired to take

advantage of the objection now urged, specially to plead res adjudicata, to set up the estoppel, and that the same cause of action was being split up. It did not below plead such matters, but confined its objection solely to the jurisdiction of the court over its person. Mills' Ann. Code, pp. 170-177, and cases cited; De Votie v. McGerr, 15 Colo. 467, 24 Pac. 923; Prewitt v. Lambert, 19 Colo. 7, 34 Pac. 681; 1 Enc. Pl. & Prac. 821, 836, 843.

If

3. It is also asserted that, while the petitioner's claim grows out of the relation of the respondent as a receiver, the petition apparently proceeds against the company personally, and fails to show, either in the title of the pleading or in its statement, such representative capacity. If such contention is true, and such requirements are contemplated by our practice, the alleged defects cannot now be urged as ground for reversal. Advantage of what, at most, was but an irregularity, was not taken below, and we repeat here what was said as to the other questions already considered, that it is too late to do so for the first time upon appeal. In connection with this assignment it is proper to notice the further point made that, inasmuch as the appellant was sought to be charged as a receiver, and it appearing from the face of the petition that no such relation existed, a recovery should not have been permitted. As to this we say the mere fact that the petitioner alleges that the order of the court permitting ores to be sold to the respondent, and its purchase thereof, and its holding of the proceeds subject to the order of the court, constituted it a receiver, is not controlling. the smelting company, as a matter of fact, or as a matter of law, did not, under the various orders of the court, become a receiver, that, of itself, does not relieve it from liability with respect to the funds in its hands which belonged to the plaintiff in the case, if, in other respects, he states and proves a cause of action against it. The averment that respondent was a receiver is but a conclusion of law drawn by the pleader from the facts alleged. We incline to the opinion that appellant was not technically a receiver, but, after its receipt and purchase of the ores under the order of the court and its voluntary retention of the proceeds subject to the court's order, a bailment arose, and the holder's relation with respect to this fund was no longer that of a mere purchaser, but rather that of a depositary or bailee without recompense, and the fund a deposit in the custody of an officer of the court. But, whether the appellant was a receiver, or a trustee, or a depositary, or bailee without hire, or a mere holder, as an officer of the court, of funds over which the court had control, or whether the relation was one having no technical name, we think is quite immaterial. In either case a trust relation between the parties was created, and the holder may be charged with duties and liabilities concerning the deposit other than its return to the owner. This leads us direct