88 P. 388 (Colo. 1906), Kelly v. Lewis

Citation:88 P. 388, 38 Colo. 18
Opinion Judge:[38 Colo. 20] STEELE, J.
Party Name:KELLY et al. v. LEWIS.
Attorney:[38 Colo. 19] George W. Forman and Chase Withrow, for plaintiffs in error. Henry Howard, Jr., for defendant in error.
Judge Panel:The CHIEF JUSTICE and CAMPBELL, J., concur.
Case Date:July 02, 1906
Court:Supreme Court of Colorado

Page 388

88 P. 388 (Colo. 1906)

38 Colo. 18

KELLY et al.



Supreme Court of Colorado

July 2, 1906

Rehearing Denied Jan. 7, 1907.

Error to District Court, Gilpin County; A. H. De France, Judge.

Action by William H. Kelly and another against William J. Lewis. Judgment in favor of defendant, and plaintiffs bring error. Reversed.

[38 Colo. 19] George W. Forman and Chase Withrow, for plaintiffs in error.

Henry Howard, Jr., for defendant in error.

[38 Colo. 20] STEELE, J.

The plaintiffs below (and here) brought an action in replevin to recover the possession of certain mining machinery. The property had been placed upon certain mining claims by the Kelly Mining Company, lessee by assignment of the claims from the plaintiff Hafer. Before the Kelly Mining Company took an assignment of the lease, Hafer agreed in writing not to hold or claim a lien upon the machinery or tools placed upon the property, and consented that they might be removed at any time, provided all royalties and expenses incurred under the lease were fully paid. Some time after the Kelly Company entered into the possession of the property it was levied upon under a writ of execution from the county court of Arapahoe county and sold by the sheriff to R. E. Goodlet for the amount of the judgment, and was afterwards sold to the defendant Lewis. The mining company went into possession of the property in December, 1898, and on June 20th following, Hafer, asserting the failure of the company to work and develop the claims as provided by the lease, took possession of the property. The court directed the jury to return a verdict in favor of the defendant. The case was taken by writ of error to the court of appeals. The assignments of error argued we shall consider in the course of the opinion.

A bond was given by the defendant for the return of the property. The bond being defective, the plaintiffs moved for an order directing the sheriff and the defendant to deliver the property replevied to plaintiffs. This motion was overruled, and the defendant

Page 389

was granted leave to file an amended bond. This action of the court is assigned as error, but, as [38 Colo. 21] it does not affect the merits of the controversy, we shall not consider it.

The defendant alleged in his answer that before the Kelly Mining Company would accept the assignment of the lease 'they required of...

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