pretation of similar statutes by other courts. McDevitt v. Sullivan, 8 Cal. 592; Walker v. McCusker, 71 Cal. 594, 12 Pac. 723; Harris v. Foster, supra; Byers v. Rothschild, 11 Wash. 296, 39 Pac. 688. We are of the opinion, therefore, that plaintiff is entitled to judgment against the defendant for the rent of the rooms occupied by him from the day of sale. But, as the amount sued for is less than $50, the judgment in its favor for costs and disbursements is erroneous. In an action of this kind the plaintiff is not entitled to costs unless he shall recover $50 or more (Hill's Ann. Laws Or. § 549), and, unless he does recover judgment for that amount, the defendant is entitled to costs as a matter of course. Id. § 551.

The judgment appealed from will therefore be reversed as to the matter of costs, and the cause remanded to the court below, with directions to enter judgment in favor of the plaintiff for $20.32, as rent for the premises sued for, and in favor of the defendant for his costs and disbursements in the lower court.

(41 Or. 466)

NEW ZEALAND INS. CO. v. SMITH et al. (Supreme Court of Oregon. June 30, 1902.) INTERPLEADER-APPEAL-SEVERABLE DECREE.

A decree of interpleader is not severable, so as to permit a defendant to appeal from the part discharging plaintiff from liability, leaving its other provisions undisturbed as to the fund paid into court.

Appeal from circuit court, Lane county; J. W. Hamilton, Judge.

Action of interpleader by the New Zealand Insurance Company, a corporation, against E. C. Smith and others. From the decree in so far as it granted relief to plaintiff, defendant Smith appeals. Dismissed.

J. C. Veazie, for the motion. Helmus W. Thompson, opposed.

PER CURIAM. This is a motion to dismiss an appeal. On December 22, 1897, the plaintiff issued its insurance policy to one E. J. Frasier, covering $2,190, on certain personal property belonging to him. A portion of the property was afterward consumed by fire, and, the company denying liability, Frasier brought an action against it, in which he recovered a judgment for $1,700 on November 1, 1898. On appeal to this court the judgment was affirmed April 29, 1901. Frasier v. Insurance Co., 39 Or. 342, 64 Pac. 814. After the commencement of the action, but prior to the rendition of the judgment therein, the insurance company was served with three writs of execution and notices of garnishment, based on judgments against Frasier, in favor of three certain parties. About the same time it was also served with notice of an attorney's lien by Frasier's attorneys. Soon after the rendition of the judgment, it

was assigned by Frasier to one E. C. Smith, the respondent in this appeal. After the affirmance of the judgment, the company was advised by Smith and the attorneys of Frasier that they intended to disregard the levies or garnishments, and enforce payment of the judgment to them in full. The garnishors were preparing and threatening to prosecute their respective garnishments to judgment against the company, and as it was not in a position to determine with safety to itself the validity of these garnishments, or their priority with reference to one another, or to the claims of the attorneys of Smith and Frasier, it brought a suit, making all persons concerned parties, deposited the full amount of the fund in court, and prayed that the several claimants be required to interplead as to the ownership of the fund, and that it be distributed among them according to their respective priorities. After overruling all de murrers to the complaint, the court ordered that the defendants interplead by appropriate pleadings, which was accordingly done. Findings of fact and conclusions of law were thereafter made and filed, to the effect that the allegations of the complaint were true, that the case was a proper one for interpleader, that the plaintiff was entitled to be relieved from further liability to the defendants, and determining the rights of the respective parties to the fund in court, and directing a distribution thereof. Upon motion of Smith and other parties, a decree was entered in accordance with such findings and conclusions, the clerk was directed to distribute the fund as provided therein, the company was discharged from all further liability under or on account of the judgment recovered against it by Frasier, and the defendants were enjoined from maintaining or prosecuting any further proceedings against it on account of such judgment. Distribution of the fund was made by the clerk to the respective parties, in accordance with their rights as determined by the decree; Smith receiving and accepting the amount directed to be paid to him. He thereafter attempted to appeal from so much of the decree as held and adjudged “that the plaintiff have the relief prayed for in the complaint herein, and be discharged from all further liability under or on account of the judgment recited in the complaint rendered in this court in the said case of E. J. Frasier, Plaintiff, v. The New Zealand Insurance Co., Defendant, and that the defendants, and each of them, be forever enjoined from further setting up, maintaining, or prosecuting their, or any of their, said claims or demands against plaintiff."

Plaintiff now moves to dismiss the appeal, and, in our opinion, the motion should be sustained, because the decree is not severable, in the sense that Smith can appeal alone from that part discharging the plaintiff from liability, leaving its other provisions undisturbed. In a suit of this kind, the decree, as

to the plaintiff, must either be that the defendants interplead and the plaintiff be discharged from further liability, or that the bill of interpleader be dismissed. Pope v. Ames, 20 Or. 199, 25 Pac. 393; Lumber Co. v. Lang, 28 Or. 246, 42 Pac. 799, 52 Am. St. Rep. 780. The fund cannot be distributed, and the plaintiff remain liable on the claims interpleaded. If the suit is dismissed, plaintiff is entitled to a return of the money paid into court, and such a decree cannot be made in this case, because no appeal has been taken from that part of the decree distributing the fund. It has been disbursed and paid out to Smith and others in accordance with the directions of the court below, and is not now in the custody of the court, or subject to its orders. If Smith desired to try the question on appeal as to whether the case was a proper one for interpleader, he should have appealed from the entire decree. He cannot appeal from a part only, and leave undisturbed and in force that portion favorable to himself and the other defendants. Where a decree is of such a character that a part may stand, although another portion is reversed, it is allowable in some instances for an appeal to be taken from a part only. But when it is not severable the appeal must be taken from the whole decree. Construction Co. v. O'Neil, 24 Or. 54, 32 Pac. 764; Bush v. Mitchell, 28 Or. 92, 41 Pac. 155.

The motion to dismiss is therefore allowed.

(18 Colo. App. 38)

CANNON et al. v. BRECKENRIDGE MERCANTILE CO.

(Court of Appeals of Colorado. June 9, 1902.) CORPORATE DIRECTORS-LIABILITY TO CREDITORS-CERTIFICATE OF PAID-UP STOCK-FAILURE TO FILE.

Where a certificate of full paid-up capital stock was not "made and filed" within the time prescribed, as expressly required by Gen. St. 252, to relieve directors from liability to creditors where an annual report of the corporation has not been filed as required thereby, no extension of time can be had to file the certificate, which was made within the time, and thus avoid the liability imposed under the plain language of the statute.

Appeal from Arapahoe county court.

Action by the Breckenridge Mercantile Company against James Cannon, Jr., and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Charles T. Brown and Edmund J. Churchill, for appellants. Rogers, Cuthbert & Ellis (Pierpont Fuller, of counsel), for appellee.

WILSON, P. J. This suit was brought to enforce the personal liability of directors for the debt of the corporation because of a failure to file the annual report as required by statute. Gen. St. § 252; Mills' Ann. St. § 491. Neither the existence of the debt nor the liability of the corporation therefor is contested, and that it was incurred within the year preceding the time when the annual report

| should have been filed is conceded. It is also admitted that the annual report was not filed within the 60 days from the 1st of January, nor, indeed, at any time before the commencement of this suit. It is also admitted that a certificate of full paid-up capital stock had not been filed in any office where it was required to be filed prior to the expiration of the time limited for the filing of the annual report. Such a certificate was prepared, signed, and verified on February 28th, but it was not filed in any office until March 7th. The time limited for the filing of the annual report expired March 1st; the certificate of paid-up capital stock was therefore filed six days too late. Under the plain reading of the statute,-and it has been repeatedly so held by this court,-a right of action by a creditor against the defaulting directors accrued immediately upon default being made. By the plain language of the act the only thing which would excuse the making of this report would be the making and filing of the certificate of paid-up stock previous to the expiration of the time when the annual report was required to be made. The making alone would not excuse it, because the statute reads "made and filed." There is no room for construction. Both the making and the filing were required. The requirement is a most reasonable one, too, because it is the filing alone which gives the requisite publicity, and which in reality effectuates the purpose and intent of the statute. It certainly cannot be contended that this court would have any power to extend the time six days, or even one day. If so, we might with the same propriety extend it thirty days, or sixty days. Instantly upon the default being made with reference to the filing of the annual report within the time limited, a right of action accrued to the plaintiff against the directors. Iron Co. v. Lenhart, 6 Colo. App. 515, 41 Pac. 834; Thatcher v. Salomon (Colo. App.) 64 Pac. 369; Hazelton v. Porter (Colo. App.) 67 Pac. 170. Nothing which the directors could subsequently do could relieve them from the liability which had attached; and most certainly it is not within the power of this court to grant them relief from the consequences of their default, incurred by a failure to comply with a mandatory requirement of the statute. The New York cases cited by counsel are not in point, because evidently based upon a different statute. Ours is not silent as to the time within which the certificate of paid-up stock must be filed. By the plain and unmistakable language of ours, as we have seen, this certificate must be not only made, but filed, before the expiration of the time for filing the annual report, in order to relieve the directors from liability. This is the only question in the case. Upon the conceded facts, any other judgment than that which was rendered would have been manifest error.

The judgment was clearly correct, and will be affirmed. Affirmed.

(18 Colo. App. 22)

LOWENSTEIN v. ALEXANDER. (Court of Appeals of Colorado. June 9, 1902.) TRIAL-EVIDENCE-FOUNDATION.

1. A verdict on conflicting evidence will not be disturbed on appeal.

2. Where defendant. on cross-examination, had been asked whether he made a certain statement at a certain time and place, and in the presence of certain persons, there was sufficient foundation for a question to a witness for the purpose of contradicting defendant as to what was the statement made by defendant at such time.

Appeal from district court, La Plata county.

Action by W. B. Alexander against D. Lowenstein. From a judgment for plaintiff, defendant appeals. Affirmed.

Galbreath & Ellis, for appellant. N. C. Miller, for appellee.

THOMSON, J. Suit upon a promissory note. Plaintiff had judgment, and the defendant appeals. The defendant admitted the execution of the note, but averred payment. He also alleged counterclaims and set-offs more than sufficient to satisfy the claim. The evidence was conflicting. The uncontradicted testimony of either party would have entitled him to judgment; but, as the statements of each were denied by the other, the questions of fact were settled by the verdict.

It is assigned for error that the court sustained the plaintiff's objection to the reading in evidence of the defendant's Exhibit A. The abstract contains no Exhibit A. and, not knowing what it was, we are unable to say whether it should have been received or not.

Error is assigned as follows: "The court erred in permitting the plaintiff to propound to witness Seth B. Ford, for the purpose of contradicting defendant, the following question: 'State whether or not Mr. Lowenstein said in the presence of Mr. Alexander, yourself, and possibly Mr. Veitch, at the time of the taking of the inventory, that the terms upon which Mr. Alexander was buying into the store was $700 in cash and one-half of Mr. Alexander's interest in the Charcoal Co.,'-because no proper foundation was laid for such question." On looking over the abstract, we find that prior to the examination of the witness Ford the defendant was, on cross-examination, asked whether, at the time and in the presence mentioned in the question, he made the statement it contained. The foundation for the question was properly laid.

Another assignment is in the following words: "That the court erred in sustaining plaintiff's objection to the following question, propounded to witness Ford by the defendant: 'I will ask you, Mr. Ford, if, when the same question was asked you, in taking the last deposition, if your first answer to the question was not that you understood Mr. Lowenstein to say that the consideration was $1,000; $700 of it was paid and $300 still due.'" No such question is found in the abstract.

Finally, it is charged that the instructions were erroneous. The abstract contains no instructions.

Let the judgment be affirmed. Affirmed.

(17 Colo. App. 526) FLORENCE & C. C. R. CO. v. MALONEY. SAME v. ALLEN.

(Court of Appeals of Colorado. June 9, 1902.)

JUDGMENT ON VOLUNTARY NONSUIT-DEFENDANT'S RIGHT TO APPEAL.

A final judgment entered in accordance with a voluntary nonsuit, allowed, without prejudice to the commencement of another suit, after a motion at the close of plaintiff's evidence to instruct a verdict for defendant had been sustained, is in favor of defendant; and hence the latter cannot appeal therefrom, though the judgment may be reviewed by writ of error.

Appeal from district court, Fremont county.

Separate actions by Edith P. Maloney and Mary S. Allen, respectively, against the Florence & Cripple Creek Railroad Company. From a judgment entered on allowing a voluntary nonsuit, defendant appeals. Dismiss

ed.

Henry M. Blackmer and Karl C. Schuyler, for appellant. Joseph H. Maupin, for appellees.

WILSON, P. J. Upon trial, after the evidence on the part of the plaintiffs had been concluded and they had rested, the defendant moved that the jury be instructed to return. a verdict in its favor. The court, after hearing argument on this motion, announced that it would sustain it, and that a verdict would be directed in favor of the defendant. Thereupon plaintiffs asked leave to withdraw a juror, and to amend their complaints in certain particulars. This was denied. Plaintiffs then offered to prove certain matters by a certain witness. To this, defendant objected, and the objection was sustained. Thereupon plaintiffs asked leave to take a voluntary nonsuit in each of the cases, without prejudice to the commencement of other suits. Defendant objected, and the objection was overruled by the court, and plaintiffs' motion for voluntary nonsuit was allowed. Judgment was entered accordingly, and defendant appeals. Appellees move to dismiss the appeal.

That in this state the right of appeal is purely statutory, and can be exercised only by the party against whom the judgment is rendered, has been settled by such numerous decisions of this court and of the supreme court that no citation of authorities is neeessary. Indeed, the proposition is not con-troverted by defendant. It is contended, however, that the action of the court in permitting plaintiffs to take a voluntary nonsuit, under the circumstances which we have detailed, was clearly erroneous. It is urged that the action of the court in announcing

that it sustained the defendant's motion, and would direct the jury to return a verdict in its favor, was equivalent to the rendition of a verdict in favor of defendant, because thereafter nothing remained to the jury but a ministerial act, vesting no discretion in them, and in, the performance of which they could exercise none. The stubborn fact remains, however, that the judgment which was rendered was against the plaintiffs and in favor of the defendant. Whether the

court should have rendered some other judg

ment does not concern us, in the determination of the question as to whether the defendant can appeal from the judgment which it did render. The final judgment from which defendant seeks to appeal is in its favor, and that alone is conclusive upon its right of appeal under the statute. It is immaterial whether the nonsuit was voluntary or involuntary, the judgment was the same,-the dismissal of the suit, with the costs to be taxed against the plaintiffs. Defendant complains that, whilst the judgment was nominally in its favor, it was in effect adverse to it, and exceedingly prejudicial, because it permitted plaintiffs to commence another suit against it. We are cited to Railroad Co. v. Iles, 25 Colo. 23, 53 Pac. 222, where it was said, "The hardship to which the defendant may be subjected by being required to defend against successive actions where the plaintiff has been nonsuited may be conceded, but a trial court may in a proper case, either sua sponte or upon defendant's motion, direct a verdict for the defendant, instead of entering a judgment as of nonsuit, and thus relieve against harassing litigation." We may concede the hardship, but in this instance the court did not avail itself of its privilege to direct a verdict for the defendant instead of entering a judgment as of nonsuit, but, on the contrary, did the latter. Whether in so doing it acted wisely or unwisely is immaterial in the determination of this motion. That is a matter which the defendant is entitled to have considered upon taking the case to this court upon error.

The final judgment from which the appeal is sought, as rendered by the court, was not against the party who here seeks to appeal, and in such case this court is without jurisdiction to review it on appeal. For this reason, the motion of the appellees to dismiss the appeal must be sustained; but, it appearing that the court would have jurisdiction if the action had come up on writ of error, it will be ordered that the cause be docketed on error. Mills' Ann. Code, § 388a (Laws 1893, p. 80, § 1). Appeal dismissed.

(18 Colo. App. 1)

GUY v. ROSEWATER. (Court of Appeals of Colorado. June 9, 1902.)

PARTNERSHIP-AUTHORITY OF AGENT.

In an action alleging a partnership and demanding an accounting, evidence of a gen

eral authority to an agent to enter into possession of, control, sell, and assign plaintiff's real estate did not empower the agent to enter into a copartnership for plaintiff.

Appeal from district court, Arapahoe county.

Proceedings by Ida B. Guy against Clara B. Rosewater. From a judgment, for defendant, plaintiff appeals. Affirmed.

N. Q. Tanquary and W. W. Anderson, for

appellant. W. C. Kingsley, for appellee.

WILSON, P. J. The complaint in this case alleged that the plaintiff, Mrs. Guy, and the defendant entered into a copartnership for the business of mining coal and buying and selling coal and coke; that the business was conducted for a few months, and that thereafter the defendant refused to further conduct it according to agreement. It was prayed that the partnership be dissolved, that a receiver be appointed, and that an accounting be had. The answer denied that there ever was a partnership, and also all other allegations of the complaint. Trial was to the court, which found that no partnership had ever been entered into between the parties, and dismissed the complaint. We would be compelled to affirm this judgment under the well-settled rule that as to findings of fact this court will not substitute its judgment for that of the trial court unless the latter is manifestly against the weight of the evidence. Aside from this, however, an examination of the evidence shows that the finding of the court was in accordance with the great weight of the evidence. There was, in fact, no evidence that would have supported a finding to the contrary. There was some little testimony as to some conversation had by the husband of plaintiff with one Joseph Metzler, who was the agent and attorney in fact of the defendant, in which plaintiff's husband was proposing the formation of a partnership; but there was no evidence to show that there was ever any consummation of this proposal, even so far as Metzler was concerned, much less so far as the defendant, Mrs. Rosewater, was concerned. It is not even suggested that either the plaintiff or her husband ever had any agreement with the defendant, or any conversation or any communication with her about it. It is not shown that the parties ever met. It is claimed by the plaintiff, however, that Metzler was the agent for the defendant, but we search the record in vain for any evidence proving or tending to prove an agency conferring upon Metzler any authority to enter into a copartnership agreement for or on behalf of the defendant. We find in the abstract a general power of attorney given to Metzler by Mrs. Rosewater to enter into possession of, control, sell, and assign all her real estate and other property in certain states, including Colorado; but it certainly cannot be contended for an instant that this empowered

him to enter into a copartnership agreement for her with any one, or on her account. The judgment was undoubtedly correct, and will be affirmed. Affirmed.

GUNTER, J., not sitting.

(18 Colo. App. 23)

FLEMING v. KELLY et al. (Court of Appeals of Colorado. June 9, 1902.) ADMINISTRATORS-CONTINUATION OF DECEASED'S BUSINESS-LIABILITY OF ESTATE— PRESENTMENT OF CLAIM.

Where an administratrix, under order of the county court, continued the manufacturing business of the deceased for three years, which resulted in a profit, obligations incurred by her for goods furnished in the conduct of the business are claims against the estate, and not against the administratrix personally, and may be presented for allowance by either the creditor or the administrator who succeeded the administratrix.

ty.

Appeal from district court, Arapahoe coun

Action by Kelly, Maus & Co. against James A. Fleming, administrator of the estate of L. A. Melburn, deceased. From a judgment in favor of the plaintiffs, the defendant appeals. Affirmed.

Clay B. Whitford and Henry E. May, for appellant. Bicksler, McLean & Bennett, for appellees.

WILSON, P. J. It appears from the stipulation of facts on which this cause was tried in the district court that, one L. A. Melburn dying, the administratrix of his estate, Mrs. Melburn, his widow, was ordered by the county court to continue to carry on the business of carriage manufacture, in which her husband was extensively engaged at the time of his decease. This the administratrix did for the period of about three years, and during such time purchased from the appellee herein certain goods, which were used by her in conducting the business. Upon a claim therefor being presented in the county court for allowance against the estate of the deceased, it was resisted by the then administrator, the successor to Mrs. Melburn, who had resigned. The claim was allowed by the county court as of the fourth class, and, upon an appeal by the administrator to the district court, it was again allowed,-to be paid, however, as a claim of the second class. From this judgment the administrator appeals to this court.

It is true, the general rule is, as declared by the authorities, that it is not permissible for an executor or an administrator to engage in trade with the assets of the estate, cr carry on the business of the decedent, unless expressly so directed by the will, or authorized by the court which has charge of the administration of the estate. If he does, he must himself personally bear all expenses incurred, and all losses, and account for all profits. He must answer for the full value

of the assets. The rule, however, is not without exceptions,-as, for instance, where it is necessary in a mercantile business or in a manufactory, temporarily,-not for the purpose primarily of making profit upon sales, as in the ordinary course of business, but in order to dispose of and realize upon the assets of the business to the best advantage. Merritt's Estate v. Merritt, 62 Mo. 151. Where he continues the business under such circumstances, it is not regarded, in law, as the carrying on of the trade or business, but simply as the winding-up of the affairs. In such cases the purchase of some goods may be necessary for the purpose of aiding in the sale of the decedent's stock of goods, and this purchase will be treated as a necessary and allowable expense of settlement of the estate. Whether paid directly by the administrator, and presented in his accounts for allowance, or presented by him before payment, or by the creditor himself, payment will be allowed, and must be made from the assets of the estate. Williams, Ex'rs (7th Eng. Ed.) 1794. In this case the administratrix acted under the express order of the county court. The order is not set forth in the record, so that we are unable to determine from it whether the court exercised its discretionary power wisely or improvidently. The presumption must be in favor of the former, there being nothing to show the contrary. The mere fact that the administratrix continued the business for the term of three years is not sufficient to justify us in concluding that the business was not being run simply for the purpose of winding it up and disposing of the entire stock. We must presume the contrary, otherwise the court under whose direction it was being done would have caused it to have been stopped. In this state, county courts, in matters of probate business, relating to the settlement of the estates of deceased persons, are invested with extensive and unlimited original jurisdiction, legal and equitable, and with large discretionary powers. The power to regulate and control settlement of such estates is expressly conferred upon them. Const. art. 6, § 23; Mills' Ann. St. §§ 1095, 1097, 1107; Lusk v. Kershow, 17 Colo. 486, 30 Pac. 62; People v. Arapahoe Co. Ct., 3 Colo. App. 428, 34 Pac. 166; Clemes v. Fox, 25 Colo. 45, 53 Pac. 225. From the necessities of the case, neither the legislature nor the constitutional convention could anticipate every business contingency which might arise in the settlement of an estate, and provide by statute specifically the powers to be exercised by the court in every instance. Primarily, its duty is to see that the assets of the estate are collected, and, if debts exist, converted into money as speedily as possible, consistent with the exercise of proper business discretion so as to prevent a sacrifice, in order that the claims of creditors may be satisfied, and the remainder, if any, be distributed among the heirs at law. It logically and reasonably follows that in fur