T. E. Waters and H. N. Haynes, for appellant. James E. Garrigues and James C. Scott, for appellees.

THOMSON, P. J. On the 23d day of November, 1892, William A. Miner borrowed $4,200 from the First National Bank of Creede, and executed a note to the bank for that amount, with Frank Shimer as joint maker. As between Miner and Shimer the latter was a surety. On the same day Miner executed a trust deed, conveying certain real estate in the city of Greeley to Warren M. Morse as trustee, the material portions of which, as it appeared when introduced in evidence, are as follows: "This indenture, made this twenty-third day of December, in the year of our Lord one thousand eight hundred and ninety-two, between William A. Miner, of the county of Weld and state of Colorado, party of the first part, and Warren M. Morse, of Weld county, Colorado, party of the second part, witnesseth: That whereas, the said William A. Miner has executed his promissory note bearing even date herewith, payable to the order of the First National Bank of Creede, Colorado, ninety days after the date thereof, for the principal sum of $4,200, with interest thereon from maturity at one and one-half per cent. per month, which said note was also executed by Frank Shimer, of Arapahoe county, Colorado, nominally as a joint maker thereof, but in fact as surety only, the said Miner being the actual principal maker of said note, and said Shimer has also agreed to become surety in like manner upon a new note extending said first note for ninety days longer (said Shimer has also agreed to become surety in like manner upon a new note, extending said second note for sixty days longer, amounting to $3,536); and whereas, the said William A. Miner is desirous of securing not only the prompt payment of said promissory notes, but also of effectually securing and indemnifying the said Frank Shimer for his said suretyship, and to save him harmless as against any and all liability on account thereof, and on account of either of said notes aforesaid: Now, therefore, the said party of the first part, in consideration of the premises, and for the purpose aforesaid, and in the further consideration of one dollar to him in hand paid by the said party of the second part, the receipt whereof is hereby confessed, has, and hereby does, grant, bargain, sell, and convey unto the said party of the second part, his heirs, assigns, and successors in trust, forever, all the premises, situated in the county of Weld and state of Colorado, known and described as follows, to wit: * To have and to hold the same, together with all and singular the privileges and appurtenances thereunto belonging, in trust, nevertheless, that in case of default of payment of said note by said William A. Miner, or any part thereof or the interest thereon, according to the tenor and effect of said notes, then it shall and may be

*

to pay the principal and interest due on said notes according to the tenor and effect thereof, rendering the overplus (if any) unto the said party of the first part, his legal representatives or assigns." The italicized words in parentheses were not in the deed when it was subscribed and acknowledged, but were inserted afterwards. The bank caused this deed to be recorded in the office of the recorder of Weld county on the 29th day of June, 1893. When the note became due it was replaced by a new note, executed by Miner and Shimer, for a further period of 90 days; and, when the latter note matured, the amount due upon it was reduced, by a payment made by Miner, to $3,536, and another note for that sum, signed by Miner and Shimer, given in lieu of it. It was after the execution of this last note that the words, "Said Shimer agrees to become surety in like manner upon a new note, extending said second note for sixty days longer, amounting to $3,536," were written in the deed. Mr. Black, the plaintiff's cashier, testified that when the note was given he exacted a new trust deed to secure it, and that the interpolation was made by him at the request of Mr. Miner, in the presence of Mr. Shimer, to save the trouble of executing a new deed. This statement was, however, contradicted by Miner and Shimer. On the 31st day of March, 1893, Shimer assigned in writing to the bank all his right, title, and interest in and to the trust deed. How the assignment happened to be made, or what was its purpose, does not appear. On July 1, 1893, Miner executed a trust deed, conveying the same property to Bruce J. Johnson, as trustee, to secure the payment to the Union Bank of Greeley of an indebtedness of $3,200, and on the 21st day of August, 1893, Morse executed a release of the trust deed first mentioned, which release was duly recorded on the 24th day of August, 1893. On March 19, 1894, Miner executed a trust deed to Samuel B. Wright, as trustee, to secure an indebtedness to Jonas Bronk of $6,000.

The First National Bank of Creede brought this action against Miner, Shimer, Morse, Johnson, the Union Bank of Greeley, Wright, and Bronk, praying that the release of the trust deed to Morse be set aside and canceled, that the lien of that deed be adjudged prior and superior to the liens of the other trust deeds, and that its foreclosure be decreed in pursuance of its terms. The answer denied that the trust deed claimed by the plaintiffs was executed for the purpose of

securing Miner's indebtedness to the bank, averred that the sole purpose of the deed was to indemnify Shimer against liability as surety, and set up the alteration of the deed, which was alleged to have been wrongfully made without the consent of Miner or Shimer. The answer contained some other denials and averments, which, for reasons to be given hereafter, it is not necessary to notice. The court declined to pass upon any of the questions of fact raised by the pleadings and evidence, and decided the case in favor of the defendants solely upon its construction of the trust deed. It mentioned the alteration in the instrument, and indicated its belief, from the evidence, that the position of the defendants in regard to that could not be sustained. Before passing to the question upon the disposition of which our decision must turn, it may be well to say that the alteration, whether made with the consent of parties or not, was, when we consider the time when it was made, entirely immaterial. If allowed to stand, no person could be injured, or any right affected, one way or another, by it. It purported to bind Shimer to become surety upon the note for $3,536. But he had already become such surety. He had signed the note, and it was in the plaintiff's possession, before the words were inserted. Such being the case, they were absolutely meaningless, and could have no effect upon the instrument, or upon the rights of any party connected with it. There were several other questions of fact, raised upon the pleadings and evidence, which are the subject of considerable argument, and the disposition of which upon another trial may affect the plaintiff's right to a decree; but, as the court refused to decide any of them, they are not properly before us. Ordinarily we are bound by the findings of fact of the trial court, but where there are questions in a case upon which that court makes no findings they must remain open here. The trial of causes is not within our jurisdiction.

We shall, therefore, proceed to an examination of the ground upon which the court expressly based its judgment. That ground was that the trust deed was given for the sole purpose of protecting Shimer against loss on account of his suretyship. What the purpose of the deed was must be found in itself. Extrinsic evidence of some intention different from that which it expressed cannot be received; but, although there was some proof attempted in that direction, the court, in reaching its conclusion, did not undertake to go outside of the language of the instrument itself. Therefore the only question before us is whether the court interpreted that language correctly. The expressed purpose of the deed was-First, to secure the payment of the note; and, second, to indemnify Shimer as surety, and save him harmless from personal liability upon the note. It authorized a sale of the property by the trustee in case of default in payment of the note, and pro

vided for the application of the proceeds, less expenses, upon the note. If the note-or, rather, the debt which it evidenced-was paid, no right in the trust deed would ever vest in Shimer. If the note was not paid, and the bank undertook to hold him personally liable, then he might cause the property to be sold, and the proceeds turned over to the bank; but he could not foreclose for himself, unless he had first paid the bank the amount due to it. Primarily, the trust deed was given as security for the debt to the bank. The right in it which Shimer had was secondary and contingent. The bank, as the owner of the indebtedness, was also the owner of the security. In this case there were two securities, the land and Shimer, and the bank might pursue either, resorting to the other for whatever the first failed to yield. It is immaterial how many renewals there were of the original note. A note is simply evidence of a debt. It was the debt which was secured. Giving one note in lieu of another is not a payment of the debt. The several renewal notes evidenced the same debt, and until that was paid the security remained in force for the benefit of the owner of the debt. The release executed by Morse recited that W. A. Miner had fully paid and satisfied the original note. This recital was not true. He had replaced the note by another, but had not paid it. At the time the release was written it was unpaid, and it is still unpaid. The release also recited that it was made at the request of Frank Shimer. Shimer had no authority to order a release. As he had not paid the debt, the security did not belong to him. Its release could be legally authorized only by the bank, the holder of the debt, and the paper did not purport to be executed by its authority. Without authority from the party for whose benefit the trust deed was given, the act of the trustee in releasing it was void. The mortgage to the Union Bank of Greeley was executed before this supposed release was made; but, even if it had been executed subsequently, as was the case with the mortgage to Bronk, the recital in the releasing instrument that it was executed at Shimer's instance, and the absence of any appearance of authority from the owner of the debt, would have made it its duty to inquire into the facts, if it intended its mortgage to be a prior lien. The judgment below, being based on an erroneous construction of the deed, must be reversed. Reversed.

WILSON, J., not sitting.

(7 Wyo. 1)

DALEY V. ANDERSON et al. (Supreme Court of Wyoming. April 26, 1897.) WATER APPROPRIATIONS-APPEAL FROM DECISION OF STATE BOARD-PETITION-NOTICE-COMPUTATION OF TIME-JUDGMENT-ENTRY.

1. Laws 1890-91, c. 8. § 30, provides that within six months after appeal, under sections

27-29, from the decision of the state board of control as to the amount and priority of water appropriations, appellant shall file with the clerk of the district court a petition setting out the cause of the complaint. An appeal was taken August 30, 1893, and the petition was filed February 28, 1894. Held, that the petition was in time, since the statute provides that a month means a calendar month, and the rule for computing a term of calendar months is that the term expires on the day of the last month corresponding to the day of the month in which the term began, if the last month has a sufticient number of days; otherwise, on the last day of that month.

2. Under Laws 1890-91, c. 8, § 28, providing that within 60 days "of the determination" of the state board of control as to the amount and priority of water appropriations, "and the entry thereof in the record of the board," appellant must file his notice of appeal, it will not be presumed, on a question whether the notice was filed in time, that the entry was made on the date of the determination, where the transcript does not show the date of the entry.

3. Under Laws 1890-91, c. 8, § 28, providing that, within 60 days from entry of the decision of the state board of control fixing the amount and priority of water appropriations, appellant shall file notice of appeal in the district court to which appeal is taken, a notice filed on August 30, 1893, was not in time, where the decision was entered the previous June 30th, the statutory rule being that the first day shall be excluded, and the last day included.

Error to district court, Carbon county; Jesse Knight, Judge.

Proceeding between William Daley and Patrick Anderson and another, before the state board of control, to determine priorities in appropriations of water. From a decision of the board, Daley appealed, and, from a judgment dismissing his appeal, brings error. Affirmed.

McMicken & Blydenburgh, for plaintiff in error. Lacey & Van Devanter, for defendants in error.

CORN, J. This case arises upon an alleged erroneous ruling of the district court of Carbon county in sustaining a motion of the defendants in error to dismiss an appeal taken by plaintiff in error from an order of the state board of control, determining the priorities and amount of appropriations of water from Separation creek, in that county. The order, as appears by a certified copy of it, was made June 3, 1893. The plaintiff in error filed his notice and undertaking on appeal under section 28, c. 8, Laws 1890-91, on August 30, 1893, and his petition under section 30 on February 28, 1894. At the hearing, the defendants in error presented their motion to dismiss the appeal, for the reason "that plaintiff and appellant's petition in appeal was not filed within the time by law provided"; and the district court sustained the motion, and dismissed the appeal. The statute (section 28, c. 8, Laws 1890-91) provides that "the party or parties appealing shall, within sixty days of the determination of the board of control, which is appealed from, and the entry thereof in the records of the board, file in the district court to which the appeal is taken, a notice in writing, stating," etc., "and upon

the filing of such notice the appeal shall be deemed to have been taken." Section 30 provides that the appellant shall, within six months after the appeal, as provided for in sections 27, 28, and 29, is perfected, file in the office of the clerk of the district court a petition setting out the cause of the complaint.

The first question presented is whether the filing of the petition on February 28, 1894, complies with the requirement of the statute that it shall be filed within six months after taking the appeal, August 30, 1893. It is conceded, and our statute provides, that the word "month," when used in the statutes of this state, means a calendar month. The defendants in error contend that the period from August 30th to February 28th includes the six calendar months of September, October, November, December, January, and February, and one day, the 31st of August, in addition; and it is argued, there being twelve calendar months in the year, that, if six be taken away, there must be six remaining; but that deducting the six months from September to February, inclusive, and the last day of August, as in this case, the remainder would be one day less than six months, and that consequently the period from August 30th to February 28th must be one day more than six months, and that, therefore, the filing was not in time, and that this fact is jurisdictional. This reasoning is ingenious, to say the least, and we have found no American case where the precise point is decided. We are referred, however, to the English case of Migotti v. Colvill, 4 C. P. Div. 233, where the same reasoning was employed, and the court decided adversely to the position of the defendants in error. The real question is, what is the proper method of computing one or more calendar months? The term "calendar month" is used to distinguish it from the lunar month, and means a month as designated in the calendar, without regard to the number of days it may contain. In commercial transactions it means a month ending on the day in the succeeding month corresponding to the day in the preceding month from which the computation began. By our statute the first day is excluded and the last included, so that a month from August 30th would begin at the last moment of August 30th. And this is the reasonable and proper method of computation in all cases arising under our statute. But the confusion occurs in this case from the fact that the computation begins near the close of the month, and that the months are not of uniform length. The computation beginning on August 30th, it would probably not be questioned that two months would end with October 30th; and this would meet the demand of defendants' argument that, after taking away two months, there should be ten months remaining of the year. But it would seem equally clear that, computing from the same date, one month would end with September 30th; but in order to have eleven calendar months remaining, and answer the demands

of defendants' argument, the whole month of August must be included, and that would require that the 31st day of August be counted twice in the year,-first to make the one calendar month, and afterwards to complete the eleven calendar months. And so, if the computation begin with August 28th, it will not be questioned, I think, that six months would end with February 28th, following. But, in order to have six calendar months remaining, the whole of the months from March to August, inclusive, must be counted; and, again, three days at the end of August would need to be counted twice to make up the twelve calendar months. But, if it be contended that, the whole of the month of February having been exhausted in completing the first six months, the computation of the last six months must begin with March 1st, then the 1st day of March, being excluded from the computation by the statute, would be entirely lost, and the last six months would be short by one day. I think these illustrations sufficiently show that it is impracticable to apply the method of computation insisted upon by the defendants in error. But if it be kept in mind that it is to be a computation by months, and not by days, the difficulty of arriving at a reasonable and convenient rule in a great measure disappears. The rule approved by the English court in the case of Migotti v. Colvill, supra, is, in substance, that the term of months expires on the day of the last month corresponding to the day of the month in which the term began, and, if the last month have not so many days, then on the last day of that month. This seems to be the true and reasonable method of computation, and in cases under our statute the term does not expire until the last moment of the day. The petition filed on February 28th was therefore filed within six months from August 30th.

But it is further objected by the defendants in error that the notice of appeal was not filed within 60 days of the determination and entry thereof in the records, as required by law. There is no direct evidence showing when the entry in the records was made. The determination, as appears by the transcript of the record, was made on June 3d. The transcript does not state when it was entered. Counsel for defendants in error insist that, in the absence of any other showing, it must be deemed to have been entered at the date of the determination. I do not think so. "Entry is not essential to the validity of the judg ment, but it is, as a general rule, a prerequisite to the right of appeal." 1 Black, Judgm. § 106. The statute giving the right of appeal in this case follows the general rule, and provides that the appeal shall be taken "within sixty days of the determination of the board of control and the entry thereof in the records of the board." It clearly contemplates the two acts as separate, and that the time in which the appeal may be taken does not begin to run until the entry in the records.

The only evidence in the case showing when it was entered is a recital in the undertaking on appeal executed by the plaintiff in error, which recital is: "Said determination and decree having been made and entered in the records of the state board of control during the month of June, A. D. 1893." Under any construction of this language, it is an admission of the plaintiff in error that it was entered not later than June 30th. Excluding the first day, and including the last, under the rule prescribed by the statute, there elapsed 31 days of July, and 30 days in August, making 61 days from the entry to the filing of the notice of appeal, or one day more than the time allowed by the statute. "The time within which an appeal must be taken is fixed by law. The appeal must be taken within the time designated. The provision which limits the time is jurisdictional in its nature. The time cannot be enlarged by the court, nor by the agreement of the parties." Elliott, App. Proc. 111. It was intimated in the argument of the case in this court that for some reason this objection to the jurisdiction was not urged, and perhaps not presented, in the court below; that, if it had been, it would have been successfully met by the plaintiff in error. We have no knowledge of any circumstances which would have excused the failure of the plaintiff in error to file his notice of appeal within the time prescribed by the statute. The objection is made here, and seems to be covered by the general terms of the motion presented to the district court. It appears

to this court that the notice was not filed in time, and that the court below was entirely without jurisdiction to entertain the appeal. The judgment dismissing the appeal must therefore be affirmed. Judgment affirmed.

CONAWAY, C. J., and POTTER, J., concur.

(58 Kan. 263, HELLER v. CITY OF GARDEN CITY. (Supreme Court of Kansas. May 8, 1897.) CONTRACTS OF CITY-SHADE TREES-LIABILITY FOR

PRICE.

1. A city of the second class may contract for planting, maintaining, and protecting shade trees on its streets, and for the purpose of paying for the same may make assessments and collect taxes in the same manner as provided for assessing and collecting taxes for sidewalks.

2. Such a contract was made by a city, and it was stipulated that assessments on the abutting property should be made and accepted as payment of the contract price of the improvement; but when the work was done the city repudiated the contract, and refused to make assessments or take any of the necessary steps towards providing a fund for the payment of the contractor. Held, that the city became liable to pay the contract price, and that the contractor might maintain an action against it therefor.

(Syllabus by the Court.)

Error from district court, Edwards county; S. W. Vandivert, Judge.

Action by S. M. Heller against the city of Garden City. From a judgment for defendant, plaintiff brings error. Reversed.

Action by S. M. Heller against the city of Garden City to recover for trees planted in pursuance of a contract made with the city. In his petition he alleges the passage of an ordinance which provided for the planting and growing of shade trees on the streets of the city, to be paid for by the owners of property abutting on the streets so improved. It was ordained that the committee of the council should enter into a contract in the name and on behalf of the city with parties, but that no liability should be incurred by the city to pay for the planting of trees except out of a fund raised upon assessment and levy of taxes against the abutting property, and that no liability should be incurred to pay for trees except such as had been planted for two years, and were in a thrifty and prosperous condition in the opinion of the city council, or of some agent appointed by the council to examine and report upon the condition of the trees. It was further provided "that, whenever there shall be any payment due under it, the party contracting with the city shall present his claim to the city council, specifying the lots and pieces of ground abutting on the improvements, certified to as correct by the street commissioner of said city; and the city council shall then, upon finding the claim to be correct, levy an assessment against the lots and pieces of ground abutting on such improvements according to the front foot thereof, and warrants shall be drawn payable only from the fund raised by such special taxation to pay for such planting of trees so contracted for." Accordingly, and on February 18, 1888, the city entered into a contract with W. E. Dabney for the planting of trees along a number of the streets of the city at the price of $1.35 for each tree found to be in a thrifty and prosperous condition at the end of two years, and agreeing that warrants should be drawn in payment for the trees in accordance with the provisions of the ordinance. Trees were planted in compliance with the provisions of the contract, and it is alleged that on May 30, 1890, there were 15,720 trees growing in the city, planted and maintained by Dabney and his assigns under the contract, upon which there was due the sum of $21,222. On that day the plaintiff tendered to the street commissioner of the city a record of the trees planted under the contract, specifying the lots and pieces of ground abutting thereon, and requested the street commissioner to certify the same as correct; but the street commissioner refused to receive the record, and refused to certify as requested. On May 30, 1890, the plaintiff tendered the officers of the city, at a regular meeting of the mayor and council, a record of the trees planted under the contract, and requested them to receive the same, and to instruct the street commissioner to examine the trees, and certify to so much of said record as was found to be correct, and requested the council to examine the trees either in person or by agent, with a view of determining how

many of the trees complied with the contract, and requested them to take the necessary steps to ascertain the amount due plaintiff, and to make an assessment and levy of taxes as provided in the contract; but the officers of the city refused to comply with the request or to recognize the contract, and have ever since repudiated it. It is further alleged that on May 30, 1890, there were 2,047 trees which had been growing for one year, and which were of the value of 95 cents each, and that the services in planting and maintaining them were of the actual value of $1,944.65; that on May 30, 1890, there were 1,145 trees which had been planted in the year 1890, and that the value of the plaintiff's services in planting the trees was $629.75. There is an averment that all rights under the contract with the city had been transferred to the plaintiff by assignment, and he demanded judgment against the city for the sum of $23,796.40. An answer was filed by the defendant, and when the case was called for trial the defendant objected to the introduction of any evidence for the reason that the petition failed to state facts sufficient to constitute a cause of action. The court sus tained the objection, and the plaintiff excepted to the ruling.

H. F. Mason, for plaintiff in error. G. L. Miller and A. J. Hoskinson, for defendant in

error.

JOHNSTON, J. (after stating the facts). The planting of shade trees upon the streets is an improvement of recognized public benefit, and the power to provide for planting. maintaining, and protecting them is expressly conferred upon the cities of the class to which Garden City belongs. Gen. St. 1889. par. 789. As an improvement they are placed on a footing with sidewalks, and are provided and paid for in the same manner as sidewalks are provided and paid for. While provision is made that assessments may be levied against abutting property to pay for such improvements, the city is nevertheless pri marily liable to those with whom it contracts to make them. Under the authority of the statutes, the city might have made a contract for the planting and maintaining of trees upon the streets and avenues of the city, and to pay the contractor for the same out of the general fund, reimbursing itself later by a special assessment against the abutting property. City of Leavenworth v. Mills, 6 Kan. 288; City of Wyandotte v. Zertz, 21 Kan. 649; City of Atchison v. Leu, 48 Kan. 138, 29 Pac. 467; Garden City v. Trigg, 57 Kan. 632, 47 Pac. 524; King v. City of Frankfort, 2 Kan. App. 530, 43 Pac. 983. The city and its officers alone are authorized to make and collect assessments, and, where they fail and refuse to take the necessary steps to provide a fund for the payment of the same, the contractor must then look to the city for the contract price of his work or