Whitney v. Teichfuss
| Decision Date | 26 October 1888 |
| Citation | 19 P. 507,11 Colo. 555 |
| Parties | WHITNEY et al. v. TEICHFUSS et al. |
| Court | Colorado Supreme Court |
Commissioners' decision. Error to district court, Chaffee county.
This action was one in support of an adverse claim by H. L Whitney et al., plaintiffs here, who were plaintiffs below, claimants of the Jenny Hess lode mining claim, against W. H. Teichfuss et al., defendants, claimants of the Dutchman lode mining claim. After there had been two trials of the case, and a third trial ordered, the defendants filed an amended answer, in which certain additional allegations were made showing that plaintiffs had failed to do certain assessment work upon the Jenny Hess lode claim, and had forfeited their rights thereto, and thereby were without any right to the premises in controversy. The court denied a motion to strike out this amended answer. The plaintiffs filed their replication thereto, whereupon the case was tried the third time. Verdict was returned for the defendants. The court denied a motion for a new trial, and gave judgment upon the verdict for defendants. Subsequently plaintiffs moved for a retaxing of the costs, which motion was denied. The case comes here upon writ of error.
T M. S. Rhett, H. W. Hobson, and M. G. Cage, for plaintiffs in error.
STALLCUP C., ( after stating the facts as above.)
There is no bill of exceptions of anything occurring prior to said motion to retax costs. The evidence, the motions presented at the trial, and the exceptions to the court's decisions and orders thereon, are not made part of the record. The errors assigned and argued here are that the court erred in denying the motion to strike out the amended answer, and in denying the motion to retax costs. The motion to strike out the said amended answer, and exceptions to the ruling of the court thereon, not being preserved in a bill of exceptions, form no part of the record proper and cannot be considered here. Section 412, Code, (1883;) Anderson v. Sloan, 1 Colo. 33; Morris v. Angle, 42 Cal. 240; Graham v. Linehan, 1 Idaho 780; Fox v. West, Id. 782; Heacock v. Hosmer, 109 Ill. 245; Kibble v. Butler, 14 Smedes & M 207; Mining Co. v. Kirtley, 8 Colo. 108, 5 P. 649.
By the act to fix and regulate the fees chargeable by county and other officers, approved February 18, 1881, Chaffee county was of the 'third class,' and so remained until February 13, 1883; when, by an act amendatory thereof Chaffee county was placed in the 'second class.' It appears by the bill of exceptions, taken upon denying the motion to retax costs, that all the costs in this case were taxed at third-class rates, being much greater in amount than if taxed at...
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