After the revision, they were commenced by summons, and certain persons were required to be made defendants, but the object of the proceeding was always the same. It was to divest the title to real estate in which such defendants were supposed to be interested as heirs, devisees, or otherwise, and so the final judgment or decision to be rendered was most important. Under the constitution, as well as under the organic act, the proceeding may be said to be purely statutory; but this in no way militates against the theory that it is within the jurisdiction of the county court at any term when such court is lawfully convened. The constitution, art. 6, § 23, expressly limits the civil jurisdiction of the county courts to be conferred by law to cases where the debt, damage, or claim, or value of property involved, shall not exceed $2,000; but as to the settlement of estates of deceased persons, as well as all matters of probate, etc., the jurisdiction is unlimited. From this the conclusion is almost irresistible that a proceeding of the kind now under consideration is not to be classed under the common law or equity jurisdiction of the county courts, but that it must be considered as a special statutory proceeding, directly connected with the probate jurisdiction. Any other conciusion renders the statute inoperative in the county court, when the property, as in this case, exceeds the value of $2,000. North Prob. Pr. c. 38; Water-Power Co. v. Webster, 26 Ill. 233; Bennett v. Whitman, 22 Ill. 449.

One further question remains to be considered: Were the proceedings regular, and was the judgment valid, or was the same prematurely given? The preliminary steps, such as the filing of a proper petition, the issuance of summons, alias summons, with proper effort to serve the same, and the return thereof, the filing of an affidavit as to the non-residence of certain defendants, and the due publication of notice to the non-resident defendants, seem to have been taken in substantial compliance with the statute; also the continuance, the appointment of a guardian ad litem for the minors, and the hearing, decree, sale, and confirmation thereof, appear to have been regular. Vance's Heirs v. Maroney, 4 Colo. 47; Rowand v. Carrol, 81 Ill. 224; Tibbs v. Allen, 27 Ill. 124.

One objection only requires particular notice. Section 103, c. 90, Rev. St., aforesaid, provides in substance that if, in cases where notice by publication is permitted, the first publication be not at least 60 days before the day named in the summons, the cause shall stand continued until the next succeeding term of the court. The summons in this case was issued early in April, and was made returnable the first Monday of May; and, as 60 days had not elapsed, the cause stood continued until the next succeeding term in June, and thereafter, and on June 23d, the court ordered and decreed the sale of the real estate. It is argued with some force that still another continuance to the July term should have been granted, as there were not 60 days intervening between the issuance of the summons and the first day of the June term. But the statute does not so provide; and while in all proceedings dependent upon constructive notice, and especially where the rights of minor heirs are involved, the statutes should receive strict construction, and be strictly pursued in all matters of substance, still we do not feel called upon to add to the statute something which it does not contain, either in words or by neccessary implication, in order to overthrow this judgment. Public policy and common justice require that judgments of courts of record of long standing, and upon the faith of which property rights have been acquired, should not be disturbed, except for the most manifest error.

The former opinion is withdrawn, and the judgment of the county court is accordingly affirmed.

12 Colo. 194

UNION PAC. RY. Co. v. PROCTOR et al.

(Supreme Court of Colorado. February 1, 1889).

QUI TAM AND PENAL ACTIONS REPEAL OF ACT PENDING SUITS.

Gen. St. Colo. c. 93, § 15, requiring a railroad company to file notice of a station at which a book should be kept for entering description of animals killed, under a penalty of double damages, was repealed by act March 31, 1885, (Sess. Laws, 338,) which took away right of recovery. Held, that a judgment for such damages, in a case pending on appeal at the time of repeal, must be reversed. Following Railway Co. v. Crawford, 19 Pac. Rep. 673.

Commissiorers' decision. Appeal from county court, Jefferson county. This was an action by appellees, E. A. Proctor and Charles Hull, against the appellant, the Union Pacific Railway Company, to recover for the killing of a cow upon the railway of appellant, and was commenced before a justice of the peace, where a judgment was given for appellees for double the value of the cow. Appeal was taken to the said county court, where a trial was had to the court, and judgment against appellant was given upon the following findings: "And upon the 3d day of March, 1884, the court, being fully advised in the premises, finds the issues for the plaintiffs, and against the defendant, and that the value of the cow sued for was fifty dollars; and that the defendant killed the cow, and failed to make a record thereof according to law in the book provided for that purpose; and that the defendant is therefore liable in the sum of $100, being double the value of the said cow, and for the costs of this suit." And the case comes here on appeal therefrom.

Seller & Orahood, for appellant. Coe & Sales, for appellees.

STALLCUP, C., (after stating the facts as above.) The cow was found near the appellant's railway, with a leg broken, and otherwise injured, apparently by a collision with an engine upon the appellant's railway. It being impracticable to save the cow, she was killed by the employes of the railway company. She was seven-eighths Durham, and of the value of $50. It appears from the evidence and judgment (there being no pleadings in the case) that the appellees obtained judgment under the penal provisions of the statute providing remedies for stock killed in the operation of railways. That provision was then in force, and was as follows: "Every railroad company shall keep a book at some station in each county through which their road runs, to be designated by the company, and a notice of the station so designated shall be filed with the county clerks of the counties in which such stations are located; and it is hereby made the duty of the said company to cause to be entered in said book, within fifteen days after the killing of any animal, a description, as nearly as may be, of such animal, its color, marks, and brands, and shall keep said book subject to the inspection of persons claiming to have had animals killed. Should any company fail to keep said book, or to file such notice, in the manner herein provided, or to enter therein such description of any animal killed for a period of fifteen days thereafter, such company shall be liable to the owner of such animal to an amount twice the full value thereof." Section 2806, Gen. St.

This provision was repealed by an act approved March 31, 1885, by which the right of recovery thereunder was taken away. See Railway Co. v. Crawford, 19 Pac. Rep. 673, (opinion recently filed.)

The judgment should be reversed.

DE FRANCE and RISING, CC., concur.

PER CURIAM. For the reasons stated in the foregoing opinion the judg ment is reversed.

C

12 Colo. 201

BRASHER v. HOLTZ.

(Supreme Court of Colorado. February 1, 1889.)

ATTACHMENT-CLAIMS BY THIRD PARTY-DAMAGES.

Under Gen. St. Colo. c. 62, § 88, providing for the intervention of a third person claimant in attachment, and that if he is found to be the owner, "the damages suffered by the claimant by reason of the levy shall be assessed," the damages recoverable, where the property itself has been sold under the attachment, are limited to the value of the property at the time of the levy, with interest from that date.

Commissioners' decision. Appeal from county court, Arapahoe county. This was an action originally commenced on September 27, 1883, before a justice of the peace by Brasher, the appellant, against John Holtz, in which writ of attachment then issued, and a horse and buggy were seized thereunder the same day, whereupon the appellee, claiming the same as her property, filed her affidavit for a trial of the right of property, as provided by section 88, c. 62, Gen. St. Upon the trial of the case judgment was given by the justice against the said defendant, John Holtz, for the sum of $120, and costs. A special execution was then issued for the sale of said horse and buggy attached. Trial of the right of property was had, resulting in finding and judgment for appellee. Appeal was taken therefrom to the said county court, where trial was had to a jury, the jury disagreeing. Another trial was had to the court without a jury, resulting in a judgment for the appellee. This judgment was vacated on motion of appellant, and a new trial allowed, which was had to the court, a jury being waived by the parties. The court found that the appellee was the owner of and entitled to the possession of the horse and buggy described in her affidavit; that they were of the value of $75; and that she was damaged by the detention thereof in the sum of $150.65, and adjudged that she have return of said property, or, in case a return of said property could not be had, that she have and recover the sum of $75, the value thereof, together with the sum of $150.65 damages, and her costs incurred, to be taxed. The damage finding rests upon testimony that the use of the horse and buggy were worth $1.50 per day.

Miller & Perry, for appellant. Sullivan & May, for appellee.

STALLCUP, C. Upon this appeal it is assigned and argued that the said finding and judgment were contrary to the evidence, and that the court erred in the amount of damages allowed. The claimant, appellee, was the wife of the defendant in the original action, and while there were some facts in the evidence of the character to create a doubt of the bona fides of her claim of right to and ownership of the horse and buggy, yet there were many facts of the character to sustain the bona fides thereof, sufficient to warrant the finding to that effect. Said section 88 provides as follows: "If any person other than the defendant in attachment claim to own or be entitled to the possession of the property attached, or any part of it, he may file his affidavit with the justice at any time before the trial of the action, setting forth his claim, and particularly specifying what property he claims. Upon such affidavit being filed, the justice shall designate a time and place for the trial of the right of property, not more than five days from the date of the filing of such affidavit. Notice in writing shall be given to the attaching creditor, and to the debtor, if such notice can be given, of the claim to be tried. In all cases where, upon trial of the issue thus made, the right of property is found to be in the claimant, the damages suffered by the claimant by reason of the levy shall be assessed by the court or jury, and the claimant shall recover his costs of the attaching creditor. If the judgment be in favor of the attaching creditor, the latter shall recover his costs of the claimant." This is the extent of the provisions of said chapter on the subject, except that by section 36 of the same

chapter it is provided that upon such trials either party shall have the right to have a jury of 12.

It appears from the record here brought under review that the said horse and buggy had been sold under the said execution issued by the justice, and the proceeds thereof applied towards the liquidation of said judgment against the said defendant, John Holtz. Where parties avail themselves of the provisions of this statute, and do not recover the property itself, the measure of damages is like that in trover for conversion, viz., the value of the property at the time of the seizure, with interest thereon. Schluter v. Jacobs, 10 Colo. 449, 15 Pac. Rep. 813; Garrett v. Wood, 3 Kan. 231; Polk v. Allen, 19 Mo. 468; Cassin v. Marshall, 18 Cal. 689. It appears from the evidence that there is nothing in this case to warrant special damages, nor the application of any other than the general rule stated. Field, Dam. §§ 791-796. The damages, therefore, recoverable in this case are limited to the value of the horse and buggy at the time of the levy, with interest from that time.

The judgment should be modified accordingly, and the appellant adjudged to pay the costs of this appeal.

RISING and DE FRANCE, CC., concur.

PER CURIAM. For reasons stated in the foregoing opinion the judgment is reversed and remanded, with directions that a modified judgment be entered in accordance with the views expressed, appellant to pay the costs of the appeal.

12 Colo. 196

DUFER v. HAYDEN.

(Supreme Court of Colorado. February 1, 1889.)

REPLEVIN-DEFENSES-PRACTICE.

Where a contract for the sale of goods, by the terms of which the vendor is to have a return of the property in case certain conditions are not complied with, is assigned by the vendor, and the assignee brings replevin against the vendee for the goods, it is no defense that subsequent to the assignment a garnishee summons was served upon the latter in aid of an execution against the vendor, and that the vendee, in ignorance of the assignment, had filed an answer admitting an indebtedness under the contract of sale to the assignor, it not appearing that any order had been made upon the answer; such facts only warrant a postponement of the trial until the determination of the attachment proceedings.

Commissioners' decision. Appeal from district court, Chaffee county. It appears from the complaint in this case that on the 4th day of February, 1884, certain goods had been sold and delivered to the appellee by one George A. Smith, under a written contract which provided for the performance of certain conditions by the said appellee, in default of which the said Smith was entitled to have return of the goods. On the 5th day of February, 1884, the said George A. Smith assigned said contract to Maria H. Smith. On the 11th day of September, 1884, said Maria H. Smith assigned said contract to the appellant, who, on the 6th day of December, 1884, commenced this action in replevin for the recovery of the said goods from the said appellee, under the terms and conditions of the said contract. On the 17th day of December, 1884, said appellee filed his answer, in which he specifically denied certain allegations of the complaint, and as a further answer thereto alleged as follows: "(1) That heretofore, to-wit, on the 14th day of February, A. D. 1884, in the district court of the Fourth judicial district sitting in and for the county of Chaffee and state of Colorado, said court having then and there jurisdiction over the parties as well as the subject-inatter of the action, a judgment was then and there recovered in said court in a cause therein pending, wherein one James E. Hawver was plaintiff, and the said Geo. A. Smith was defend

ant; said judgment being then and there in favor of said Hawver for the sum of $680.71, together with the costs of suit, which judgment is now, and ever since the rendition of the same has been, wholly unsatisfied, and the same now is, and ever since said time has been, in full force and effect, as the records of said court will show, and to which reference is herein made. "(2) That afterwards, to-wit, on the day of A. D. 1884, an execution was duly issued out of said court in favor of said Hawver, upon said judgment, and for the purpose of collecting the amount thereof, which execution was duly placed in the hands of the sheriff of said Chaffee county to serve, and afterwards, in aid of said execution, a garnishee summons was duly served by the sheriff of said county upon this defendant, commanding him (this defendant) to keep possession of all personal property, rights, or credits of the said Geo. A. Smith for the reason that such credits or other personal property or debts are attached in pursuance to said writ or garnishee summons. That at the time this defendant was garnished as aforesaid, he (said defendant) had in his possession the goods and chattels mentioned in said invoice bill, save and except the portion thereof that had been, by this defendant, sold in the ordinary course of trade under and by virtue of said contract. That said honorable court had duly appointed B. F. Garrison of Salida, Chaffee county, Colo., as referee in said cause wherein the said Hawver was plaintiff, and the said Geo. A. Smith defendant. That under and by virtue of said garnishee summons, this defendant was commanded to and did appear before the said Garrison as said referee, to answer upon oath respecting any personal property, rights, or credits of the said Geo. A. Smith in his (this defendant's) possession, or under his control. That this defendant then and there made answer upon oath before said referee that, under and by virtue of said contract which this defendant had entered into with the said Geo. A. Smith, (said contract being duly set out in said complaint,) this defendant, when said goods and chattels were sold according to the terms of said contract, would be indebted to the said Geo. A. Smith in the sum of $1,140, and that he (this said defendant) had then and there said goods and chattels in his (this defendant's) possession, save and except the portion of the same that had been sold under the terms of said contract.

"(3) That this defendant's said answer before said referee is duly filed in said cause with said referee's report; and that this defendant has made no other or further answer in said action. That said answer by this defendant was made in good faith, and was made before any knowledge or information on the part of this defendant that said contract had been assigned. That said garnishee proceedings were instituted, and said answer was made, long prior to the commencement of this action; and that this cause is brought for the purpose of obtaining possession of the same goods and chattels which this defendant was commanded to retain possession of in said garnishee proceedings. Wherefore defendant demands judgment that this action be dismissed at the cost of the plaintiff."

On the 15th day of January, 1885, the case came on for hearing upon the motion of appellee, defendant therein, for judgment on the pleadings, whereupon judgment was given as follows:

'Now at this, comes the defendant herein, by T. C. McDevitt, his attorney, no one appearing for the plaintiff herein, and case called for trial, and thereupon this cause coming on for hearing on the pleadings, and the court, being fully advised in the premises, does find that the defendant is entitled to the possession of the property in controversy, and that he is entitled to have and recover of and from the said plaintiff the return of the property aforesaid, and, if return cannot be had, he have and recover of and from the plaintiff the sum of $1,140, the value of said property, together with sum of ($200) two hundred dollars damages and costs of suit. Wherefore it is considered by the court that the plaintiff, Charles E. Dufer, do return to defendant,