error.

as to an action pending in the Supreme Court of Western Lumber & Pole Co. v. Golden, on appeal improperly allowed from a judgment 124 Pac. 584, and California M. & M. Co. v. not reviewable in that manner, the Court of Appeals might re-enter the case as pending on Rocky Mountain National Bank, 124 Pac. 590, recently decided. In conformity with the rulings in the cases last mentioned, the motion of appellants must be denied, and the motion of appellees to dismiss the appeal will be sustained, provided, and it is further ordered, that the clerk of this court enter

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 48-57; Dec. Dig. § 14.*] Hurlbut, J., dissenting in part.

Appeal from District Court, El Paso Coun

ty; J. W. Shearfor, Judge.

Action by the Acorn Gold Mining Company and others against Harry Hendrie, County Treasurer, and another. Decree for plaintiffs, and defendants appealed to the Su

preme Court, whence the cause was transferred to the Court of Appeals. On appellees' motion to dismiss the appeal and on appellants' motion to strike appellees' moAppellants' motion overruled, appellees' motion sustained, and cause ordered entered as pending on error.

tion.

Tully Scott, Co. Atty., Thomas, Bryant & Malburn, of Denver, and G. P. Nevitt, of Cripple Creek, for appellants. H. Frost, of Colorado Springs, and Schuyler & Schuyler, of Denver, for appellees.

the cause as pending on writ of error, in the manner and with the effect, as provided in section 423, Code of Civil Procedure, Rev.

Stat. 1908, and that this cause be set down

for final hearing, as upon writ of error.

HURLBUT, J., concurs in the dismissal of the appeal, but dissents from the order entering the cause as pending on writ of error.

SCOTT, P. J., having been of counsel, not participate.

does

(22 Colo. App. 149)

COLLINS v. BAILEY et al. (Court of Appeals of Colorado. April 8, 1912. Rehearing Denied June 10, 1912.)

1. NEW TRIAL (§ 18*) RIGHT TO-AMENDMENT OF ANSWER AFTER VERDICT.

Where, in an action for possession of lode mining claims from which defendants extracted ores as owners of a joint claim, the original answer merely denied plaintiff's ownership and tiff a new trial, where defendants were permitright of possession, it was error to refuse plainted, after verdict in their favor, to file an amended answer setting up an affirmative claim defendants' claim of apex right. to a vein within plaintiff's ground by reason of

[Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 24-29; Dec. Dig. § 18.*]

2. MINES AND MINERALS (§ 38*)-LODE MINING CLAIMS · APEX RIGHTS EVIDENCE SUFFICIENCY.

In an action for possession of lode mining claims from which defendants extracted ores as owners of an adjoining claim, evidence held insufficient to show that defendants' operations in plaintiff's ground were in a vein apexing in defendant's claim.

PER CURIAM. [1, 2] This appeal was taken by appellants, who were, respectively, the county treasurer of Teller county and the board of county commissioners of the same county, from a final decree annulling certain tax sales of mining property belonging to appellees, and the certificates of purchase issued thereon, and enjoining the execution of treasurer's deeds for said property. The abstract of the record, together with the briefs of appellants and appellees, were filed, and the cause was ready for final hearing, in the Supreme Court, at the time the order was made transferring the cause to this court under chapter 107, Session Laws of 1911. Afterwards appellees filed their motion to dismiss the appeal, asserting that the judgment was not one which could be taken to the Supreme Court by appeal. Appellants moved to strike the motion of appel- [Ed. Note.-For other cases, see Mines and lees from the files, for the reasons, as claim-Minerals, Cent. Dig. §§ 872-113; Dec. Dig. § 38.*] ed, that this court is without authority to entertain such motion, after full appear- 3. MINES AND MINERALS (§ 38*)-LODE MINING CLAIMS-ACTION FOR POSSESSION-INance in the Supreme Court and submission to its jurisdiction by appellees, and that the latter are, for the same reason, estopped to question the jurisdiction on appeal. Counsel for appellants have not contested the claim of their opponents that there was no right of appeal from this judgment to the Supreme Court under section 388, Mills' Ann. Code (section 422, Rev. Code 1908), and the position of appellees in that regard is affirmed by the court.

STRUCTIONS.

In an action for possession of lode mining claims from which defendants, as owners of an adjoining claim, extracted ores under claim that they were operating in a vein apexing in their ground, an instruction that, in determining whether a vein is continuous in its downward course, it is not necessary that the vein tance, but that the jury should consider all the should be open or disclosed for the entire disfacts shown as to the dip or incline of the vein, its geological and mineral character, and the walls, and from the whole evidence determine

whether it was the same vein, was erroneous

as tending to mislead.

[3] On the other hand, we cannot assent to the grounds of appellants' motion to [Ed. Note. For other cases, see Mines and strike, without running counter to previous Minerals, Cent. Dig. §§ 872-113; Dec. Dig. § decisions of this court, including the cases [38.*]

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Appeal from District Court, Eagle Coun- | over the objection of plaintiff, to file a joint ty; Chas. Cavender, Judge.

ward through the endlines of said Grand closed for the entire distance; but you must Trunk lode so continued in their own di- take into consideration all the facts shown rection that such planes will intersect such as to the dip or incline of the vein, its exterior parts of such vein or lode, and geological and mineral character, and of the their right to remove ore and other material walls, and from the whole evidence decide from their said Grand Trunk lode. The de- whether it is the same vein in fact." fendants prayed that the defendants W. B. Brown and Edward Brown be adjudged to be the owners, and the defendant the French Mountain Mining Company be adjudged to be the lessee and entitled to the possession, of the alleged Grand Trunk lode or vein, cut within the sidelines of plaintiff's lode claims.

It was agreed that plaintiff was the owner of the Australian, the Shamrock, and the Hecla lodes, and that the defendants were the owners and lessees of the Grand Trunk lode; that the ore being removed and the workings in dispute are within the lines of the Hecla, and between which and the Grand Trunk lie the Shamrock and the Australian, After this answer was permitted to be fil- is likewise admitted. So that the claim of ed, the court overruled plaintiff's motion for the defendants in this case arises solely a new trial and rendered judgment, in sub-upon their contention that the vein so bestance, that the defendants are entitled to ing worked in the Hecla apexes in the Grand the possession of the vein or lode in dis- Trunk. The errors assigned, and which pute in this action opened up and disclosed seem necessary to consider, are: (a) The rewithin the sidelines of the Hecla and Sham-fusal of the court to direct a verdict for the rock claims as a vein or lode apexing within the lines of the Grand Trunk lode and a part thereof, the defendants W. B. Brown and Edward Brown being so entitled as the owners thereof, and that plaintiff has no right, title, or interest therein whatever. It was further adjudged that said vein is in

plaintiff; (b) the order of the court allowing defendants to file an amended answer to conform to the proof; (c) the giving of the instruction to the jury heretofore set out, over the objection of the plaintiff.

[1] It will be seen that the answer of the

claims set out in the complaint; while the amended answer, permitted to be filed after verdict was returned, set up an affirmative claim to the vein, admitted to be within the plaintiff's ground, by reason of defendant's This was a new and claim of apex right.

different cause of action from that set up in the original answer and upon which the case was tried.

fact the Grand Trunk vein belonging to defendants upon which the case was tried and having its apex upon the Grand Trunk was simply the denial of ownership and the lode, and that the title, rights, and inter-right to possession by plaintiff of the lode ests of the defendants are hereby quieted and confirmed as against the said plaintiff and all persons claiming under him, and that said plaintiff, his agents, servants, and attorneys, are hereby enjoined and restrained from asserting or claiming any right, title, or interest in said vein, or in any ore taken from said vein, and from in any manner interfering with said defendants or their heirs or assigns, or any of them, in their working of said vein or lode upon the dip thereof, or in the extraction, treatment, sale, or disposal of ore therefrom, unless it shall hereafter be shown that the apex of said vein departs from the Grand Trunk claim, in which event the plaintiff shall have leave to apply for a modification of this order and decree to the extent owned by such de parture.

The case was thereupon appealed to the Supreme Court and is now before this court for review. Before the case was submitted to the jury, plaintiff moved for a directed verdict upon the ground that defendants had not proved any continuous vein or body of ore from the ground of defendants into the patented ground of plaintiff, within the meaning of the acts of Congress, and that the continuity and dip were not established by competent or any testimony.

The appellate courts of this state have been liberal in the matter of the allowance of amendments to pleadings, and particularly so as applied to answers. In the case of Cartwright v. Ruffin, 43 Colo. 377, 96 Pac. 261, it was held that amendments to pleadings are largely in the discretion of the trial judge, and, unless clearly abused, such discretion ordinarily will not be interfered with on appeal. It was there further held that greater liberality is necessarily allowed in the matter of amendments to answers than to complaints, especially under Code practice, and that this liberality is sometimes extended to the admission of entirely new defenses.

While the question of the amendment presented for consideration in that case was not determined, yet it was characterized as radical. Neither do we find it necessary to determine whether or not the amended pleadThe following instruction is likewise com- ing in this case, as such, was allowable. Yet plained of: "The jury are instructed that, in view of the finding hereinafter stated, as in determining whether a vein is continuous to the failure of proof upon the part of the in its downward course, it is not necessary defendants, we hold that for such reason the that the vein should be opened up or dis- amendment was not proper.

125 P.-35

But if the amended pleading be co sidered | issues joined cannot be sustained. Jackson as permissible and within the discretion of v. Ackroyd, 15 Colo. 583, 26 Pac. 132. the court, then, under the practice, it was the duty of the court in this case to have granted a new trial, and to have thus permitted the parties to try the case upon the new pleadings.

"At common law the court has power to allow an amendment of the pleadings in a case until final judgment; and authority is given by statute in most of the states to allow amendments after as well as before judgment by the insertion of new allegations material to the case. Although this is an

The court's action in allowing the amendment was also in violation of the Code provision requiring a showing to be made. Mills' Ann. Code, § 65. The motion for a new trial should have been granted.

[2] From what has been said the judgment should be reversed; but, inasmuch as the case may be again tried, it seems proper to From a consider the remaining questions. careful study of the record it seems quite clear that there was a failure of proof as In to the defendants' claim of apex right. order to understand the issue, it will be extraordinary power and should be sparingly exercised, amendments have been allowed un- to which we will refer as 'figures "1" and necessary to consider the following sketches, der special circumstances even after satisfaction of the judgment. If the amendment face lines and location of the lode claims "2," respectively. Figure 1 shows the suris allowed, the judgment should be vacated involved. It also shows the line of the tunin order to give the opposite party an op-nel and the location of the shaft, also the portunity to controvert the new allegations; workings on the Grand Trunk lode, referred or a separate trial should be had upon the to in the record as the "upper tunnel." Fignew issues." 1 Am. & Eng. Enc. Pl. & Pr. ure 2 is intended as a sectional view show605, 606, 607. ing the shaft on the Grand Trunk sunk a short distance below the level of the upper tunnel, which last appears to be about 30. feet below the surface, and also shows what is known as the "up-raise" in the lower tunnel on the Hecla claim, as well as the supposed course of the vein between these points, an estimated vertical distance of 550 feet, all of which was wholly uncovered and unexplored.

Therefore the refusal of the court to grant a new trial after allowing the amended answer to be filed, and thus to permit the case to be tried upon the pleadings as amended, was error. The verdict and the judgment were wholly at variance with the defendants' pleadings upon which the case was tried, and it has been held that the judgment obtained through a clear departure from the

FIGURE