Percy Consolidated Mining Co. v. Hallam

Mr. Justice Campbell delivered the opinion of the court. There are fourteen errors assigned. Of these the first ten, while “separately alleged,” are not “particularly specified.” They state generally that “ the court erred in its various findings of fact,” but do not specify wherein the error consists. This is not a compliance with rule 11 of this court. The only errors which, under rule 11, we can be called upon to consider, are those numbered respectively as 12, 18, and 14, relating to the admission in evidence of certain agreements between Miller and Hallam, referred to as exhibits 1, 2, and 3. The first of these was the written agreement of March 26, 1887, concerning the three claims; the second of May 2,1888, in relation only to the La Salle lode; and the third, of the same date, in relation to the Harrisburg and Denver lodes. The larger part of appellants’ brief consists of a vigorous argument to show that'the findings of the court are not justified by the evidence in the case. There was no exception to the final decree saved by appellants. In the decree itself is a recital that the defendants excepted to the findings and the decree, but this is not enough. The exception so taken must be preserved by bill of exceptions, and thus made a part of the record. We cannot, therefore, review the evidence for the purpose of determining the sufficiency of the same. The cases in this court and the court of appeals supporting both of. these propositions, which are uniform and have been [237] repeatedly announced, are collected in Mills’ Annotated Code, p. 666. As just stated, there is nothing in any of the assignments of error specifying wherein the evidence is insufficient; but if we waive strict enforcement of the two rules just mentioned, and look to the evidence itself, we still are unable to discover its inadequacy. It is only in the argument of counsel that we are informed of appellants’ conclusion that the principal reason why the plaintiff is not entitled to recover is that his rights rest upon a “ champertous ” contract, which he entered into with Miller, to furnish the latter aid in securing Miller’s rights from Markell, and that these rights were contingent upon the success or failure of a lawsuit thus prosecuted. Under the doctrine laid down in Courtwright v. Burnes, 13 Fed. Pep. 316, it is doubtful if such a defense, even if properly presented, would avail the defendants here, because interposed by a stranger, and not by a party, to the agreement the enforcement of which is asked. However this may be, and if, in the assignments of error, the appellants had complied with our rules of practice, and we could weigh the evidence with a view to pass upon its sufficiency, as this objection was not taken by answer, or objection to evidence, or in any other way at the trial, it is too late to raise it for the first time in this court. Kutcher v. Love, 19 Colo. 542. The last three errors assigned, relating to the ruling of the court in admitting in evidence the three written contracts between Miller and Hallam, are without merit. While they do not specify why the admission of these instruments was wrong, by a reference to the abstract we learn that the general objection at the trial was that the contracts, as introduced, were not the contracts declared upon in the complaint; but wherein the difference lies, we are not even there advised. The argument of counsel, however, is that there is a variance between this proof and the allegations. To this we reply, that if, in any particular, there was a variance between the proofs offered and the allegations of the complaint, both for the protection of the court and the plaintiff, ■ such objection [238] should have been clearly and distinctly called to the attention of the court, so that, if an amendment to the pleading, or additional evidence, might have cured the objection, an opportunity therefor would have been given. Webber v. Emmerson, 3 Colo. 248; Cody v. Butterfield, 1 Colo. 377; Colo. M. & I. Co. v. Rees, 21 Colo. 435. But an examination of these writings and a comparison thereof with the complaint satisfies us that they correspond, and that these instruments tend to establish the allegations of that pleading. A careful examination of the record shows that no reversible error was committed, and the judgment is accordingly affirmed. Affirmed.