attach the fuse. The testimony of the plain- [ tiff is that both he and Collard had been experiencing difficulty with defective fuse. Inasmuch as a defective fuse must result in a missed shot, it is clearly in the interest of the employer as well as the employé that defective fuse should be avoided where reasonably possible to save time and to avoid dan-clared liability of the master was intended to be ger. [6] It is urged that the plaintiff was guilty of contributory negligence in that he did not remonstrate with Collard, or leave the crosscut when Collard began to test the fuse. It is not reasonable to infer that the plaintiff could anticipate that his fellow workman and an experienced miner would throw a lighted fuse in the direction of or into a powder can, and after he did so it was too late to take refuge. There is no testimony in the case to indicate that the circumstance of testing the fuse was unusual or dangerous in the exercise of reasonable prudence upon the part of the person making the test. It is plain that the explosion was the result of the unexpected and negligent act of Collard in casting the fuse in the direction of the powder. This is not contributory negligence. Miller v. Camp Bird, 46 Colo. 569, 105 Pac. 1105. [7] Instruction No. 5, complained of, is as follows: "You are further instructed that the question of contributory negligence of the plaintiff is a matter of defense, and the burden of proof is on the defendant to establish by a preponderance of the evidence. If upon this question of contributory negligence you should find that the evidence is equally balanced, then upon such question it would be your duty to find in favor of the plaintiff." It is agreed that this was a correct statement of the law prior to the act of 1901, but within the purpose of the fellow-servant act to change the rule as to the burden of proving conthat the phrase 'without contributory neglitributory negligence, and these courts maintain gence on his part,' appearing in their acts, which is similar to the phrase 'being in the exercise of due care, appearing in our act, was obviously inserted in the statute from motives of caution, that it might not be supposed that the deabsolute, and without regard to any negligence of the complainant contributing to the injury. The Wisconsin and Minnesota rule meets with our approval." We think the construction thus placed upon the statute is both logical and sound. It is admitted by the plaintiff in error that the amount of damages awarded is not excessive, and that the sole question here is as to the liability of the company. The judgment is affirmed. On Rehearing. PER CURIAM. Motion for rehearing de-. nied en banc. WHITE, C. J., and BAILEY and GARRIGUES, JJ., dissent. (63 Colo. 27) STOKES et al. v. KINGSBURY. (No. 8832.) (Supreme Court of Colorado. April 2, 1917.) 1. JUDGMENT 521-COLLATERAL ATTACK— INJUNCTION. A bill in equity, brought by a judgment creditor against the plaintiff in the judgment and a sheriff to restrain collection thereof, constitutes a collateral attack upon the judgment where the record is fair on its face and the jurisdiction of the court undenied. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 964.] 2. JUDGMENT 768(1)-LIEN-NOTICE. Where a transcript of a valid judgment was filed in another county during the same month in which it was rendered, the judgment debtor was bound to know of the judgment lien. [Ed. Note. For other cases, see Judgment, fellow-servant statute changed the rule in Cent. Dig. § 1325.] this respect. It has been held in this juris-3. EXECUTION it is contended that the enactment of the DENCE. 172(4)-INJUNCTION - EVI In a suit to enjoin the collection of a judgment, the record held to show that the judgment debtor had full knowledge of the entry of the judgment. [Ed. Note. For other cases, see Execution, Cent. Dig. §§ 525-532.] Error to District Court, Garfield County; John T. Shumate, Judge. Suit by Marie K. Kingsbury against Charles A. Stokes and others to restrain the collection of a judgment. Judgment for plaintiff, and defendants bring error. Reversed and remanded. diction that such contention is not well founded. In National Fuel Co. v. Maccia, 25 Colo. App. 441, 139 Pac. 22, it was said: "The trial court instructed the jury that the burden of proving contributory negligence was placed upon the defendant company. Counsel for defendant predicates error on this instruction, and upon the theory that, since one of the counts in the complaint was based upon the fellow-servant statute, and since said statute gives a remedy denied by the common law, that he who would invoke the aid of the statute must plead and prove that he, the plaintiff (or in this case the deceased plaintiff's husband), was in the exercise of due care; in other words, that while this instruction of the court was correct as applied to the first count, it was wrong as to the second count, which was based upon the statute, and the court made no limitation as to the application of the instruction. There appears to be authority supporting counsel's contention, but the same is contrary to the rule laid down in Lorimer v. Railway Co., 48 Minn. 391. 51 N. W. 125: Dugan v. Chicago Ry. Co., & Wis. 609, 55 N. W. 894; and Andrews v. BAILEY, J. Plaintiffs in error, defendChicago Ry. Co., 96 Wis. 348, 71 N. W. 372. Under statutes similar to our own the Minnesota ants below, bring this cause here for review and Wisconsin courts have held that it was not on error from the District Court of Garfield Stokes & Sherman, of Denver (C. W. Darrow, of Glenwood Springs, of counsel), for plaintiffs in error. J. W. Dollison and E. C. Kingsbury, both of Glenwood Springs, for defendant in error. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes It is established law here that where the court has jurisdiction of the parties and the subject matter in a particular case, its judgment, until reversed or annulled in some direct proceeding, is not open to attack by parties or privies in any collateral action or proceeding whatsoever. Trowbridge v. Allen, 48 Colo. 419, 110 Pac. 193. In Clarke v. Asher, 53 Colo. 313, 125 Pac. 538, suit was brought in the District Court of La Plata County to enjoin the levy of an execution on a judgment rendered by the County Court of Hinsdale County, wherein plaintiff in the injunction proceeding was defendant, and defendant therein was plaintiff, as in the case at bar. Injunction was asked on the ground that the judgment was void in that the complaint in the action in which it was rendered failed to state a cause of action. The court quoted Trowbridge v. Allen, supra, with approval, and held that the attack upon the judgment was collateral and without County. Defendant in error, plaintiff below, instituted proceedings therein to restrain collection of a judgment rendered against her in the District Court of the City and County of Denver, in favor of Charles A. Stokes and Jesse H. Sherman, two of the plaintiffs in error. Jessup, as Sheriff of Garfield County, made a levy upon certain lands of defendant in error, and in that capacity was one of the defendants below and plaintiffs in error here. The complaint as originally filed alleged among other things, lack of service of summons in the original action, and attacked the judgment upon grounds going to the merits of the case. On plaintiff's own motion this complaint was amended and the allegation of lack of proper service withdrawn. Defendants answering, set up, among other things, the plea of a valid judgment, in effect a plea of res adjudicata. Upon preliminary hearing a temporary order was granted, restraining defendants below from proceeding with the execution and sale. Aft- effect to enjoin the execution. The opinion er what was to all intents and purposes a trial de novo of the issues which were, or might have been, adjudicated in the action in which the judgment in question was rendered, a special verdict was returned, and approved with slight modification by the court, the restraining order was made permanent, and defendants enjoined from attempting to enforce the lien of the judgment, which lien was set aside and held for naught, with dam ages to plaintiff in the sum of $250.00. in Clarke v. Asher, supra, must rule this case, as in principle it determines precisely the same questions which are involved and for determination in the case before us. The defense pleaded by the defendants below was a final judgment of the tribunal having jurisdiction both of the subject matter and the person, and, even though erroneous, is conclusive upon collateral attack. Austin v. King, 25 Colo. App. 363, 138 Pac. 57, and the District Court of Garfield County should have dismissed the action. [2, 3] The judgment was rendered in December, 1912. A transcript thereof was filed in Garfield County during the same month, and defendant in error was, therefore, bound [1] The record here plainly shows that the judgment of the District Court in and for the City and County of Denver, upon which execution issued, which was enjoined, was valid and enforceable, that personal service was had on defendant, and that an answer to know that there was a judgment lien upon was filed by her attorney, although judgment was later entered without contest. The record is fair on its face, and the jurisdiction of the court undenied, and the judgment, therefore, not open to collateral attack. That the attack was collateral is established by the great weight of authority, including our own decisions. Black on Judgments, § 253, speaking to this point, says: "A bill in equity seeking to enjoin the enforcement of a judgment at law, by execution or otherwise, constitutes a collateral attack upon the judgment, and cannot be maintained on account of mere errors or irregularities, but only on a showing that the judgment is void." This rule is laid down in Harter v. Shull, 17 Colo. App. at page 166, 67 Pac. at page 912, and is approved in Cochrane v. Parker, 12 Colo. App. 169, 54 Pac. 1027: "A collateral attack on a judgment is in its general sense any proceeding which is not instituted for the express purpose of annulling, correcting or modifying such decree. The fact that the parties are the same and that the defendants seek to attack the decree by allegations in their answer, cannot change the rule or make the attack any the less a collateral one. It is well settled that judgments of a court of competent jurisdiction are not subject to collateral attack, unless they are void, and by void is meant that they are an absolute nullity." her lands. It is not necessary, however, to rely upon the constructive notice of the filing of the transcript to charge her with full knowledge of all the proceedings prior to the entry of the judgment which she assails. The record shows that she was represented by an attorney, who filed an answer for her, under which every defense and objection urged in the instant case against the judgment in the District Court of the City and County of Denver might properly have been there presented and urged. It is claimed that no defense was made at that time for the reason that defendants below agreed with her not to proceed with the action, and that she relied that defendants wrote and mailed her a letthereon. It conclusively appears, however, ter, in which it was stated that if she did not deliver to them certain collateral, as security for the payment of the debt upon which the judgment is based, they would go forward with the action. She denies the receipt of this letter. Her attorney, however, received written notice of the setting of the case for trial, and she herself admits receiving other communications from defendants wherein their proposed action in going forward with the suit in the Denver district court, in the event that she refused to deposit | void. If the judgment is void on its face, it the collateral, was reiterated. It is worthy is of course a mere nullity and is of no avail of note, also, that at the hearing upon which for any purpose, and this may be urged against it whenever it is brought into question. But the temporary injunction was granted, she otherwise, whether it be regular or irregular, denied having any attorney when the judg-correct or erroneous, valid or voidable, it is not ment was secured, and denied any knowledge subject to collateral attack." of the answer which was filed for her, or The judgment of the trial court will be that she authorized the filing of any answer. reversed, and the cause remanded with inLater, however, she admitted that the attor-structions to dismiss it. WHITE, C. J., and ALLEN, J., concur. (62 Colo. 567) REIL v. PEOPLE. (No. 8393.) (Supreme Court of Colorado. April 2, 1917.) 1. CRIMINAL LAW 293-DEMURRER-ADMIS ney who appeared for her in the Denver Judgment reversed and remanded, with insuit was authorized to do so, and on the structions. trial at which the restraining order was made permanent, the attorney who filed the answer was present to testify, and she objected to his testimony, and to the admission of a certain letter she had written to him in reference to the judgment, on the ground that these matters were privileged, as communications between attorney and client. Upon the whole record, her claim that she was not aware that the action was pending, or of the judgment rendered, or of the facts and circumstances of the case from beginning to end, is so contrary to that which the documentary and record evidence shows, that, even if her contentions could properly have been heard by the Garfield County District Court at all, they are unworthy of serious consideration. Under the law she is charged with knowledge of the judgment, yet she took no steps to reverse, impeach, annul, or set it aside, either by writ of error, other direct attack, or at all. In McGoon v. Scales, 9 Wall. 23, 19 L. Ed. 545, the Supreme Court of the United States has this to say: "The doctrine of this court, and of all the courts of this country, is firmly established, that if the court in which the proceedings took place had jurisdiction to render the judgment which it did, no error in its proceedings which did not affect the jurisdiction will * * * be considered when the judgment is brought collaterally into question." Black on Judgments, after quoting the above opinion, at sec. 245, continues as follows: SION. Demurrer to the plea of autrefois acquit admits the facts set up in the plea. Law, Cent. Dig. § 672.] [Ed. Note. For other cases, see Criminal 2. CRIMINAL LAW 202(1) FORMER JEOPARDY-AUTREFOIS ACQUIT. Where defendant was acquitted of the charge of having had sexual intercourse with a female under 18, the acquittal was a bar to subsequent prosecution for nonsupport of the girl and her illegitimate child. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 386-395, 398, 400-403.] 3. CRIMINAL LAW 294-FORMER JEOPARDY -AUTREFOIS ACQUIT-ANSWER. In prosecution for nonsupport of an illegitimate child and its mother, where defendant pleaded autrefois acquit because he had been acquitted in a prosecution for having had sexual intercourse with the mother, if the acquittal was on the ground that she was over 18, and not on the ground that he did not have connection with her, the matter should have been set up by the state's answer to the plea. [Ed. Note.-For other cases, Law, Cent. Dig. § 673.] Scott, J., dissenting. see Criminal Error to Jefferson County Court; Alexander D. Jameson, Judge. he brings error. "This principle is not merely an arbitrary rule of law established in the courts, but it is a doctrine which is founded upon reason and May 4, 1914, the district attorney filed an the soundest principles of public policy. 'It is one,' says the court in Virginia, which has information in the county court of Jefferson been adopted in the interests of the peace of county, charging that Roy Reil on May 5, society and the permanent security of titles. If, 1913, and thence continuously to April 13, after the rendition of a judgment by a court of 1914, at that county and state, did willfully competent jurisdiction, and after a period has elapsed when it becomes irreversible for error, neglect, fail, and refuse to provide reasonable another court may in another suit inquire into support and maintenance for Roy Etta May the irregularities or errors in such judgment, Reil Giggey, his illegitimate child under 16 there would be no end to litigation, and no years of age, and did willfully fail, refuse, fixed established rights. A judgment, though unreversed and irreversible, would no longer be and neglect to provide proper care, food, and a final adjudication of the rights of litigants, clothing for Lois Giggey, the mother of the but the starting point from which new litiga- child, during child-birth and attendant illtion would spring up; acts of limitation would To this information defendant interbecome useless and nugatory; purchasers on the faith of judicial process would find no pro- posed a special plea of former jeopardy and tection; every right established by a judgment autrefois acquit, which alleges: That at the would be insecure and uncertain; and a cloud November term of the district court of Jefferwould rest upon every title.' * The rule son county he was tried by a jury duly imagainst collateral impeachment applies to every an information judgment, order, decree or judicial proceeding, paneled and sworn, upon ness. of whatsoever species, that is not absolutely charging that August 16, 1912, he feloniously For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes had sexual intercourse with Lois Giggey, an unmarried female person under the age of 18 years; that the state offered evidence upon three separate acts of sexual intercourse, to wit, one August 11, 1912, another August 15, 1912, and another on some date between August 16, 1912, and August 29, 1912; that she testified on the trial that these were the only offenses committed upon her by him; that evidence of the birth of Roy Etta May Reil Giggey was offered in corroboration of the commission of the charge, and the child was produced in court, pointed out to the jury on the trial, and they heard her cry; that Lois Giggey testified she was under the age of 18 years when all of the alleged transactions were committed; that at the conclusion of the people's evidence defendant's counsel moved that the prosecution elect upon which one of the offenses the state would rely to secure a conviction, which was denied, and he was forced to defend and was in jeopardy as to all three; that at the conclusion of the evidence the people elected to ask for a conviction on the offense testified to as having occurred August 16th, and the jury returned a verdict of acquittal; that the matters set out and the evidence to support the information herein were admissible and were admitted in evidence upon the former trial wherein he was acquitted, and the evidence of the people on the former trial was such that, had the jury believed it, a verdict of guilty might properly have been returned; that, the jury having passed upon that evidence at the former trial and returned a verdict of not guilty, defendant cannot again be put in jeopardy for the same matters; that he has been in jeopardy of the same facts, matters, and transactions charged against him herein, in which the same evidence will be admissible as in the former case, and he tenders and offers to prove all of the facts and matters set forth in this plea and demands a jury trial thereon. GARRIGUES, J. (after stating the facts as above). [1] 1. One Lois Giggey, an unmarried female under the age of 18 years, gave birth to an illegitimate child of which she claimed defendant, Roy Reil, was the father. She thereafter caused his arrest and trial in the district court of Jefferson county upon a charge of sexual intercourse with her, an unmarried female person under the age of 18 years, which is a statutory offense punishable by imprisonment in the penitentiary. Upon this trial she testified that she was under the age of 18 years when all the acts of sexual intercourse occurred; that there were but three such acts with defendant, one on August 11, one on August 16, and the other some time between August 16 and August 29, 1912. In corroboration of her testimony she produced the child in evidence in court on the trial and testified that defendant was its father and that it was the result of these acts of sexual intercourse. At the close of the people's evidence defendant's counsel moved that the prosecution be required to elect upon which transaction it would ask for a conviction. The request was refused, which made it incumbent on Reil to defend against and introduce evidence on all the transactions. At the close of all the evidence the people elected to rely for a conviction upon the transaction, testified to by her as having occurred on August 16th, and the jury returned a verdict of acquittal upon the merits. She afterwards caused the arrest and trial of the defendant in the same court upon a charge of nonsupport of the same child and herself upon the ground that he was its father, which under the statute is a crime punishable by imprisonment in the penitentiary, and on this trial the jury returned a verdict of guilty. The demurrer to the plea of autrefois acquit, which was sustained, admitted all these facts, and the question is whether the first prosecution is a bar to the second. [2, 3] 2. The two alleged crimes are SO clearly allied and dependent upon the same evidence that an acquittal in the former bars the subsequent prosecution. Proof of the The people demurred to the plea for the reason that it does not state facts sufficient to constitute a plea and answer to the information, which was sustained and defendant ordered to plead. May 22, 1914, he plead-charge of being the father of the child deed not guilty and was placed on trial. May 28, 1914, the jury returned the following verdict: "We, the jury, find the defendant, Roy Reil, guilty in manner and form as charged in the information filed herein." After motions for a new trial and in arrest of judgment were overruled, June 20, 1914, the defendant was sentenced by the court to not less than four nor more than six months in the penitentiary, and he brings the case here on error. A. D. Quaintance, of Denver, for plaintiff in error. Crump & Allen, of Denver, amici curiæ. Fred Farrar, Atty. Gen., and Clement F. Crowley, Asst. Atty. Gen., for the pended upon the identical facts charged in the former case, and acquittal upon the merits was a bar to this prosecution charging him with being the father of the child which it is alleged he neglected to support. The same ingredient is the basis of both charges. The crime of nonsupport is grounded upon the fact of its being his illegitimate child. To prove this it would be necessary to prove on the trial at least one of the identical acts and facts of sexual intercourse of which he had at the previous trial been placed in jeopardy. The issue upon acquittal was upon the merits as to the main acts, and not upon the allegation of the female being over the age of 18 years. If the acquittal was upon the latter ground, so that he might still have have been set up by an answer. To acquit on the former trial it was as necessary for the jury to find that he, was not the father of the child as it would be necessary in the latter case to convict for them to find that he was the father of the child. ered a judgment against the defendant and appellant, S. K. Williams, in the sum of $254. Motion for a new trial was made and denied on April 1, 1916. Notice of appeal was given on April 20, 1916, and a supersedeas bond was filed April 28, 1916. On September 23, But it is said that, while the facts are the 1916, a transcript of the evidence was lodged same, the crimes are not; therefore defend- with the clerk of the superior court. Nothing ant has not been in jeopardy of the crime further has been done to prosecute the appeal charged. True, they are not the same in to effect. These facts are duly authenticated. name, but in character and identity of evi- Appellee moves this court to dismiss as for dence they are closely associated. When ac-a frivolous appeal, with damages. This mocused was tried and acquitted upon the mer- tion is not resisted by appellant. its of the charge of having sexual intercourse with the prosecutrix, he was placed in jeopardy upon all acts of sexual intercourse concerning which evidence was given at that trial, and he could not subsequently be convicted upon a charge of not supporting the child claimed to have been begotten at such time. The jury could not carve out of the evidence that he was the father of the child without proof of some identical act of sexual intercourse upon which he had been acquitted. In 12 Cyc. 288, it is said: "Doubtless an acquittal upon the charge of assault and battery would be a bar to a subsequent indictment for rape, where both charges are based on the same transaction." The point is made that the title of the act "to compel men to support their wives and children." (Laws 1911, p. 527) refers to legitimate children, and is not broad enough to include a criminal prosecution under it for the nonsupport of an illegitimate child and its mother. Upon this contention the court expresses no opinion. The judgment is reversed, and the cause remanded. Reversed and remanded. TELLER, J., specially concurs. J., dissents. (18 Ariz. 534) It appearing that the appeal was taken solely for delay and without any meritorious cause, following the rule laid down in Willis v. Ivy, 16 Ariz. 120, 141 Pac. 570, Nienstedt v. Dorrington, 16 Ariz. 121, 141 Pac. 569, and Baca v. Noyes-Norman Shoe Co., 181 Pac. 884, it is ordered that the appeal be docketed in this court, and the said appeal be dismissed, and that appellee recover its costs. The judgment appealed from being for the recovery of money, it is further ordered and adjudged that a sum not exceeding 10 per cent. of the judgment appealed from be, and the same is hereby, fixed at $25, which amount is awarded to appellee as damages for a frivolous appeal. (18 Ariz. 535) HAMMOND v. STATE. (Cr. 411.) (Supreme Court of Arizona. April 18, 1917.) Where accused submitted cause on judgment roll forming transcript on appeal with no record of evidence, made no appearance by argument or brief, the judgment will be affirmed, where it does not appear that any substantial SCOTT, right has been denied. WILLIAMS v. WEST PUB. CO. (No. 1571.) Appeal from County. Superior Court, Cochise Action by the West Publishing Company, a corporation, against S. K. Williams. From a judgment for plaintiff, defendant appeals. Dismissed. Alexander Murry, of Bisbee, for appellant. O. Gibson, of Tombstone, for appellee. PER CURIAM. On the 1st day of March, 1916, the West Publishing Company recov [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3203-3214.] Appeal from Superior Court, Yavapai County; Frank O. Smith, Judge. A. L. Hammond was convicted of violating the prohibition amendment to the Constitu tion, and appeals from the judgment of conviction and order overruling his motion for a new trial. Affirmed. Robert E. Morrison, of Prescott, for appellant. Wiley E. Jones, Atty. Gen., and P. W. O'Sullivan and J. H. Morgan, both of Prescott, for the State. PER CURIAM. Information for violating the prohibition amendment to the Constitution, and an appeal from the judgment of conviction and order overruling his motion for a new trial. The cause is submitted to this court on the judgment roll forming the transcript on appeal. The evidence is not in the record. The appellant makes no appearance and gives no assistance to the court by way of For other cases sec same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |