Martha occasionally was in the home. About three weeks after the second marriage, Elizabeth ceased to live with her brother. William remained in his father's home for seyeral years. The two sisters moved to Denver, Colo., in 1889, Elizabeth in April, and Martha in June. William followed in 1890, remaining in Denver till 1891, when he went to Garfield county to live on a ranch; the sisters remaining in Denver, and Martha being engaged in teaching school, and Elizabeth in dressmaking. Meanwhile the plaintiff and her husband continued to live in Pennsylvania. Some time later, Charles H. Park first came to Denver on a visit to his sisters, where he remained for about three months, then went to his son's ranch, and afterwards returned to his wife in Pennsylvania. In May, 1897, he returned to Colorado for his permanent residence, and was followed by his wife some time in October of the same year. They kept a boarding house in Denver for several months. Later-just when is not altogether clear from the evidence he left Denver with the intention of no longer living with his wife, and went to the ranch of his son in Garfield county, and there brought a suit for divorce, which seems afterwards to haye been removed for trial to one of the courts in the city and county of Denver.

In the light of the foregoing, the particular facts presented by plaintiff, in her briefs, and which she says are legally sufficient to establish the charges she makes against defendants, have thus been stated by her counsel: That the morning after plaintiff's marriage. Elizabeth and Martha stated to her that she must have given their brother love drops and done all the courting; that they had not the least idea that he would bring a young girl like her to his home, and, when plaintiff replied that she and her husband loved each other, they laughed at her. That William made it unpleasant for her after she came to her husband's home by shooting her in the eye with an arrow while she was engaged in washing, and Elizabeth justified her nephew's conduct by saying that his father did not care if he broke every window in the house. William seemed to be of the same opinion and stated to plaintiff that he did not see why his father married her and brought her to his home. Martha and Elizabeth insisted on having a folding door be tween their room and plaintiff's kept open, and insinuated that plaintiff communicated a vile disease to their brother. William virtually took charge of and "ran the house" without consulting plaintiff, and on one occasion made a violent assault upon her. Elizabeth and Martha told plaintiff their family did not want her, and that her talk about love was nonsense, there was nothing of it in the world, and that she would have to give up her husband. After defendants came to Colorado, they wrote several letters to plaintiff's husband. which plaintiff says

she saw, the purport of which was the acknowledgment of the receipt of money which her husband had sent to them, and these letters also contained invitations to the husband to come out to William's ranch; that he, but not plaintiff, was needed there. On receipt of these letters, the husband seemed to be dissatisfied, and would not be like himself, not speaking for days at a time. That after he returned from his first visit to Colorado to their home in Pennsylvania his conduct was changed, and again he seemed to be dissatisfied. That the return of Charles to Colorado in May, 1897, was without warning to plaintiff, and she was ignorant of his whereabouts for about a week, when she received a letter from him in Denver and after some correspondence between her and her husband she came to the city of Denver. Upon her arrival there, her husband was not at the train to meet her, as had been arranged whereupon she went to the schoolhouse, where Martha was engaged in teaching, and found her there; but Martha refused to shake hands with her, and falsely told her that her husband was at William's ranch, and when plaintiff expressed an intention of going there Martha said she was not wanted. That after plaintiff and her husband had kept a boarding house in Denver for about four months, he opened up communication with defendants, and trouble with plaintiff was renewed. That William assisted his father, and furnished him money to bring the divorce suit, and that the husband got about $500 of her money from the bank and left her without any support when he took up his permanent residence with his son at the ranch.

We have thus detailed the various facts which plaintiff claims that the evidence establishes, and which, for the purposes of this case, she says must be taken as true, and as legally sufficient to uphold a verdict in her favor, had the jury returned one. We do not say that the evidence establishes all these facts, but we may assume that her claim in that respect is well founded. In their testimony defendants positively deny ever having made any efforts whatever to induce plaintiff's husband to leave her, or to alienate his affections. In every material point the three defendants squarely contradict plaintiff in her testimony, and they are corroborated in important particulars by certain facts and circumstances which it is not necessary to mention. It nowhere appears in this record as a fact, and not at all, unless unfounded suspicions which plaintiff undoubtedly entertains, and unwarranted inferences which she deduces, are to be treated as facts, that either of the defendants ever sought improperly to influence her husband against, or to turn his affections from. her, or to persuade him to abandon or cease to live with her. There is not a particle of evidence that any of the statements which she testifies they made to her were ever communicated to her

husband either by them or her, or that his alleged desertion, or loss of affection, were in any degree caused by their acts or conduct. It may be true that neither of the defendants liked the plaintiff, or approved of her marriage, after they became acquainted with her; but, if either of them was guilty of the charges which she makes against them in her complaint, there is no legal or sufficient proof of it in this record. Had the jury returned a verdict upon this evidence in plaintiff's favor, it would have been the duty of the court to set it aside as having no legal support and manifestly against the weight of the evidence. Mere suspicions in which plaintiff indulges, and inferences from conduct that a sane mind would not draw, are not sufficient to justify a recovery of damages, and the court did right in directing a verdict for the defendants. Plaintiff's contention that her case is aided by the defendants' own evidence is wholly without merit. There is nothing in the testimony of either of the defendants, or any evidence produced by them, that tends in any degree, directly or indirectly, to sustain, or render probable, any of the charges contained in the complaint.

2. Counsel strenuously argues that the court erred in not permitting plaintiff to testify to her husband's declarations made to her during the existence of the marriage, and in refusing her offer of his letters written to her during coverture. Reliance is had on Williams v. Williams, 20 Colo. 51, 37 Pac. 614, wherein the court held, in a similar action by the wife, that declarations of the husband having reference to his separation, or contemplated separation, were admissible for the purpose of showing what had probably caused such separation, though his mere declarations were not admissible to show what defendant's conduct really was. In that case the objection to such declarations which apparently defendant interposed was that declarations of a person not a party to an action are incompetent. The objection (made here) seems not to have been made there, at least was not discussed by the court, that under section 4824, Mills' Ann. St., neither husband nor wife during the marriage or afterwards shall be, without the consent of the other, examined as to any communication made by one to the other during the marriage. But assuming that such declarations are proper under the authority of the case cited, we are of opinion that no such question is here presented. The declarations of the husband apparently were considered by counsel for both parties to be incompetent without the husband's consent, and when plaintiff's counsel called him as a witness, and asked him if he would consent that his wife might testify to his declarations that occurred during the marriage in relation to the cause of separation, and he refused to give his consent, no attempt was made to interrogate plaintiff with reference thereto, or to prove such declarations. So far as the oral declarations

are concerned, we do not have before us a cas case where the court refused to admit them. With respect to the husband's letters to his wife, which it is said were excluded by the court, we say, first, that it does not clearly appear from the record whether they were admitted or rejected. They are reproduced in the abstract, and an examination of them shows that they contain nothing whatever tending in any degree to prove the plaintiff's cause of action, or to corroborate her testimony. Their tendency is to contradict her in every important particular, and, if they were excluded by the court, such ruling in nowise prejudiced the plaintiff.

We

3. Counsel uses strong and extravagant language in characterizing the conduct of the trial judge as unfair to the plaintiff. have examined the record with much care, but are unable to discover any evidence of unfairness. Indeed, great latitude was allowed plaintiff in her attempt to show that defendants had wronged her. If any errors were committed in rulings on evidence, they were against the defendants, rather than the plaintiff.

Plaintiff signally failed to prove her case, and in directing a verdict for defendants and dismissing the action the court was clearly right, and its judgment is therefore affirmed. Affirmed.

STEELE, C. J., and GABBERT, J., concur.

(16 Wyo. 58)

LITTLETON et al. v. BURGESS. (Supreme Court of Wyoming. Oct. 7, 1907.) 1. APPEAL-CHANGE OF VENUE-BILL OF EXCEPTIONS-NECESSITY.

The question of error on ruling on a motion for a change of venue cannot be considered where there is no bill of exceptions.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3. Appeal and Error, § 2361.]

2. INJUNCTION-UNDERTAKING-PARTIES.

Rev. St. 1899. § 4043, provides that no injunction shall operate until an undertaking is given to secure the damages incurred by the party enjoined. Section 1107 provides that the county and prosecuting attorney shall prosecute or defend for the state or county in all civil or criminal suits or proceedings at law in which the state or county is a party. Held that, where an injunction was issued restraining the county and prosecuting attorney from prosecuting a party for violating the anti-gambling law, the undertaking properly ran to the attorney individually, as neither the state nor county was a party.

3. COURTS JURISDICTION-ESTOPPEL TO OBJECT.

Where one invokes the power of a court of general jurisdiction to obtain an injunction, he cannot thereafter be heard to say, in avoidance of damages for injury resulting therefrom, that the court had no jurisdiction.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Courts, § 149.]

4. SAME DISTRICT COURT-EQUITY JURISDICTION.

The district court has original equity jurisdiction.

The attorney's fees incurred were recoverable in an action on the undertaking, though not actually paid.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 27. Injunction, § 597.]

7. APPEAL-QUESTIONS REVIEWABLE.

Where, on appeal from a judgment in an action on an undertaking given on the issuance of an injunction, the record failed to show that a motion for an itemized bill for attorney's fees was made, or that objections were made or exceptions taken to the admission of evidence on the ground that such fees were not itemized, the question could not be considered.

8. PARTIES-PARTIES PLAINTIFF-WHO ARE.

All having interests in common with those of plaintiff in the subject-matter of a suit should be joined as plaintiffs: but, on a refusal to join as such, they may, on appropriate averments, be made defendants.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, Parties, §§ 54, 55.]

9. PARTIES DEMURRER — GROUNDS LEGAL CAPACITY TO SUE.

Under the express provisions of Rev. St. 1899, § 3535, it is only when the plaintiff has no legal capacity to sue that a demurrer will lie on the ground that he has no capacity to sue; the words "legal capacity to sue" referring to infancy, want of authority, or any personal disability to maintain the action.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, Parties, § 118.]

Error to District Court, Sheridan County; Charles E. Carpenter, Judge.

Action by James H. Burgess against Fred Littleton and another. Judgment for plaintiff, and defendants bring error. Affirmed.

M. B. Camplin, for plaintiffs in error. Chas. A. Kutcher, E. E. Enterline, and Lonabaugh & Wenzell, for defendant in error.

SCOTT, J. This action was brought in the district court of Sheridan county by the defendant in error, as obligee, against the plaintiffs is error, as obligors, to recover upon an injunction undertaking given and executed by Littleton, as principal, and Schroeder, as surety, in an action wherein the said Littleton was plaintiff and the said Burgess, county and prosecuting attorney of Sheridan county, Wyc., was defendant. The case was tried without the intervention of a jury, and the court found and rendered judgment in favor of Burgess. Littleton and Schroeder bring the case here on error.

1. Plaintiffs in error (defendants below) complain that the trial court denied their motion for a change of venue.

That ques

tion cannot be here considered. for the reason that there is no bill of exceptions, and the motion and affidavit in support thereof, not being pleadings in the case, can only be 91 P.-53

brought into the record by such a bill. It was so decided in Perkins v. McDowell, 3 Wyo. 328, 23 Pac. 71, and that decision has ever since been the rule of practice in this court.

2. Plaintiffs in error demurred to the petition on three grounds, viz.: First, that the petition does not state facts sufficient to constitute a cause of action; second, that there is a defect in the party plaintiff, appearing on the face of the petition, in this, that "James H. Burgess" in his individual capacity, or as an individual, is not the proper party plaintiff, but that the face of the petition discloses the proper party plaintiff to be either James H. Burgess, as county and prosecuting attorney of Sheridan county, Wyo., or the state of Wyoming; third, that the plaintiff has no capacity to sue, as disclosed from the face of the petition. The demurrer was overruled, and the defendants were given time within which to plead, to which ruling they reserved an exception, and such ruling is here assigned as error.

It is alleged in the petition that James H. Burgess was the duly elected and qualified county and prosecuting attorney in and for Sheridan county during 1904 and 1905; that on August 20, 1904, the plaintiff in error Littleton commenced an action in the district court of Sheridan county against said Burgess, county and prosecuting attorney of Sheridan county, Wyo.. the object and purpose of which was to restrain and enjoin the defendant therein, as county and prosecuting attorney of said county, from causing the arrest and prosecution of the said Littleton for a violation of the anti-gambling law, and from further prosecuting him in a proceeding wherein he had been duly charged and arrested for a like offense; that upon application to the judge of said district court a temporary injunction was directed to issue restraining and enjoining said Burgess, as such county and prosecuting attorney, from causing the arrest and from prosecuting said Littleton for the alleged violations of the law, upon said Littleton giving an undertaking in the sum of $1,000 conditioned as required by law. Thereupon Littleton, as principal, and Schroeder, as surety, executed and filed the undertaking involved in this suit, which was approved by the clerk of the district court, and the writ issued and was served upon Burgess. The undertaking is in the following words, to wit: "Bond for Injunction. Whereas, in the above-entitled action, a temporary injunction has been granted as prayed in said petition on file herein, the same to become effective and be in force upon the plaintiff executing a bond to the defendants in the sum of one thousand dollars, conditioned as required by law: Now, therefore, we. Fred Littleton, as principal, and Fred Schroeder, as surety, acknowledge ourselves to be held and firmly bound unto said defendant in the sum of $1,000.00, conditioned that the said plaintiff will pay said

defendants and each of them all damages which they may sustain if it be finally determined that said injunction ought not to have been granted. In witness whereof, we have hereunto set our hands this 20th day of August, A. D. 1904. [Signed] Fred Littleton, Principal. Fred Schroeder, Surety." It is further alleged that thereafter such proceedings were had therein that on March 22, 1905, judgment was duly entered in said cause by which it was adjudged that said temporary injunction ought not to have been granted, and the action was dismissed; that thereafter. upon proceedings in error, this court affirmed the said judgment; that ́said Burgess contracted and obligated himself to pay the sum of $1,000 as attorney's fees in the defense of said action and to secure the dissolution of the injunction. in which sum he has been damaged and prays judgment therefor.

It will be observed that the injunctional suit was against James II. Burgess, county and prosecuting attorney of Sheridan county, Wyo., and that the undertaking runs James II. Burgess as an individual. It is contended that the undertaking is not such as required by law, in that it was not made to the defendant in his official capacity, but to him personally, and that as such it did not constitute a basis for the issuance of the writ and, also, that the writ was void because the court had no jurisdiction of the subject-matter of the action. It is provided by statute that the undertaking shall be given "to secure the party enjoined the damages he may sustain if it be finally decided that the injunction ought not to have been granted." Section 4043, Rev. St. 1899. The facts alleged in the petition were not sufficient to invoke the exercise of equitable jurisdiction. It was not such an action as is contemplated by the statute in prescribing the duties of the county and prosecuting attorney. Section 1107. Rev. St. 1899, provides that the county and prosecuting attorney shall prosecute or defend for the state or county in all civil or criminal suits or proceedings at law in which the state or county is a party. Neither state nor county was a party to the action. Both were strangers to the injunction suit, and neither had nor could have any interest in or title to the proceeds of any judgment recovered on the undertaking. Breeze v. Haley et al., 13 Colo. App. 438. 59 Pac. 333. Breeze was temporarily enjoined as county treasurer from collecting taxes. The undertaking ran to him individually. and, upon determination that the writ ought not to have been granted, suit for damages was commenced on the undertaking against the obligor and his sureties. The first complaint was entitled "Lewis II. Breeze. Plaintiff." while the second amended complaint was entitled "Lewis H. Breeze, as Treasurer of Routt County. Plaintiff, v. Ora Haley et al.. Defendants." There was no answer to the complaint, and, upon admission of the

In

fact that Breeze had ceased to be treasurer of Routt county at the time of the commencement of the action, a motion to dismiss was sustained on the ground that at the time of the commencement of the action Breeze was not the treasurer and had no authority to bring it. The plaintiff then asked leave to withdraw his second amended complaint and to substitute and reinstate his first complaint. This motion was denied, and judgment of dismissal was ordered. The Court of Appeals reviewed the judgment and held that the words descriptive of the plaintiff in the seeond amended complaint were unnecessary, and further said: "No considerable injury can result to the defendants by permitting the plaintiff to abandon his second amended complaint and fall back on. his first." In that case it was also said: "It is true that the collection of taxes was a duty which pertained to his office as treasurer of the county, but it was a duty for the performance of which he was personally responsible.” the case before us it was a duty pertaining to the office of county and prosecuting attorney to prosecute the case for the state, and Burgess, having qualified as such officer, was personally liable on his official bond for a failure to do so. Section 1107, Rev. St. 1899. There can be no question that he had a personal interest in the defense of the injunction suit in order to avoid personal liability upon his official bond. His authority to act in the matter of the prosecution of the criminal case was derived from his office. The state looked to him for benefits from the performance of his official duties, but whether or not he would act in the performance of those duties was a matter personal to himself. That he was about to act in the prosecution of Littleton was the matter complained of, and it was those acts which were sought to be restrained by the injunction. This being the case, it follows for the purposes of this suit that the undertaking properly ran to Burgess individually, and that the action thereon was maintainable in his name. Section 4043, Rev. St. 1899: Breeze v. Haley et al., supra.

That the court had no jurisdiction to enjoin the prosecution of crime by the prosecuting officer was decided by this court in Littleton v. Burgess, 14 Wyo. 173, 83 Pac. 861, 2 L. R. A. (N. S.) 631. It does not, however, follow that, because of absence of such jurisdiction, no action can be maintained upon the undertaking given and upon which the writ issued. When in such a case one invokes the power of a court of general jurisdiction, he cannot thereafter be heard to say, in avoidance of damages for injury resulting therefrom, that the court was without jurisdiction. 22 Čye. 1040, and cases there cited. The district court possesses original equity jurisdiction. In Robertson v. Smith, 129 Ind. 428. 28 N. E. 857, 15 L. R. A. 273, it was alleged as a defense to an action on an injunction bond that the order granting the injunction was void for want of jurisdic