GABBERT, J. On petition for rehearing it is strenuously urged that the reasons as signed in our former opinion for holding the original judgment entered in favor of the plaintiff in error void are not tenable; that, at most, the irregularities noticed, and upon which our decision was based, only rendered it voidable, and therefore not subject to attack by motion. On reconsideration of the case, we have concluded there is but one question necessary to determine, viz. was the judgment in question void? To determine this question it is not necessary to notice those passed upon in the original opinion, and for that reason it will be withdrawn. The salient facts are, briefly, these: This action was commenced in the court below by plaintiff in error to recover from the defendants in error the value of labor performed and materials furnished by him in the development of certain mining claims, it being alleged that such labor was performed, and materials furnished, at the instance and request of the defendants. The action was supplemented by an attachment, by virtue of which the interests of defendants in these claims were levied upon. Service of summons was by publication. Certain of the defendants appeared, and filed a general demurrer to the complaint. The surviving inember of the firm of attorneys who had filed this demurrer withdrew his appearance. Thereafter an order was entered overruling the demurrer, and immediately thereafter the default of all the defendants entered, and a joint judgment rendered against them for the total value of the labor performed and materials furnished, as alleged in the complaint. The original defendants and plaintiff were tenants in common of the mining property in question, their individual holdings or interests therein being stated in the complaint. The prayer of the complaint was for judgment for $1,138 (less onefourth part thereof, that being the interest of plaintiff), with interest from March 1, 1885, in the proportion of the respective interests of the defendants, and for other and further relief as the court might deem just and equitable. Nearly 11 months after judgment motions were interposed by certain of the defendants, the assignee of the interests of others, and the heirs and legal representatives of those deceased, to vacate the judgment, for the reason that it was void. This

motion was sustained, and the defendants allowed to answer. A trial on the merits resulted in a judgment in favor of the defendants. The plaintiff assigns error on the action of the court in sustaining the motion to vacate.

Section 169, Mills' Ann. Code, expressly provides that, if there be no answer, the relief granted the plaintiff shall not exceed that which he shall have demanded in his complaint. The prayer of the complaint in this case was for a several judgment in proportion to the respective interests of the defendants. The one rendered was joint for the entire sum. That this was error cannot be successfully controverted. Whether it rendered the judgment void, or merely voidable, is the crucial question. One of the essentials of a valid judgment is that the court pronouncing it must have jurisdiction to render that particular judgment (Newman v. Bullock, 23 Colo. 217, 47 Pac. 379; 12 Am. & Eng. Enc. Law [1st Ed.] 246); and, if it appears from the record of a judgment that the court in pronouncing it acted without jurisdiction, it is void (People v. District Court, 22 Colo. 422, 45 Pac. 402; Brown v. Wilson, 21 Colo. 309, 40 Pac. 688, 52 Am. St. Rep. 288; Great West Min. Co. v. Woodmas of Alston Min. Co., 14 Colo. 90, 23 Pac. 908). The distinction between void and voidable judgments is often refined, and difficult of solution. "A judgment may be erroneous, and not void; and it may be erroneous because it is void." Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872. There can be no doubt, as stated in Newman v. Bullock, supra, “that the tendency of the later authorities, especially in the federal courts, is to enlarge the definition of jurisdiction to make it include not only the power to hear and determine, but also the power to render the particular judgment in the particular case." This doctrine is based upon the proposition that, if a court is not invested with power to render a particular judgment, its attempt to do so is without its jurisdiction, and must not be confounded with the proposition that the rendition of an erroneous judgment within its power is but the erroneous exercise of its jurisdiction. With full jurisdiction to pronounce a judgment which would be binding upon the defendants and their property, the power and authority of the county court was limited by definite, statutory provisions as to the character of relief which could be granted against defendants who had not answered. By directing a joint judgment when an individual one only was prayed for, the trial court transcended its authority, and violated express statutory commands; for, although its jurisdiction attached to the parties, a judgment not within the powers granted by the law of its organization is void. Ex parte Lange, supra; U. S. v. Walker, 109 U. S. 258, 3 Sup. Ct. 277, 27 L. Ed. 927. U. S. v. Walker was an action by an administrator de bonis non on the bond of an administra

trix to recover money received for assets of the estate collected by the latter, and which, by order of the court, in the settlement of her account as administratrix, she was directed to pay over to the administrator de bonis non. The law of the jurisdiction under which the administratrix acted provided that upon the removal of an administrator the court shall have authority to direct that assets of the deceased in his hands, which may remain unadministered, be delivered to the newly-appointed administrator. The court concluded that this statute did not change the common-law rule to the effect that an administrator de bonis non derives his title from the deceased, and not from the former administrator; that to him is committed only the administration of the assets of the deceased which have not been administered; and, therefore, assets of the estate which had been converted into money by the former administrator were funds to which he was not entitled. It was urged that the decree directing the administratrix to pay over these funds to her successor was conclusive in the suit upon her bond, for the reason that such decree could not be collaterally attacked. The supreme court held to the contrary, because, as stated, in effect, the court directing the decree exceeded its jurisdiction, in that its authority for making the order was limited to assets of the decedent in the hands of the administrator which were not administered upon. Bigelow v. Forrest, 9 Wall. 339, 19 L. Ed. 696, was an action of ejectment. Bigelow, who was defendant in the trial court, relied for title on a sale made under a decree of the United States district court rendered in a proceeding for the confiscation of the premises sued for under the act of July 17, 1862. This act provided that the property of an officer of the army or navy of the Confederate government might be seized and sold, which proceedings should operate to devest the owner of the property so seized of any interest therein during his life. Under this act a decree had been rendered which purported to direct a sale of the property in fee. The heir of the owner claimed that the decree was void in so far as it purported to direct an unconditional confiscation of the property in question. In the action of ejectment it was contended that this question could not be raised collaterally. The supreme court said: "Doubtless, a decree of a court having jurisdiction to make the decree cannot be impeached collaterally, but under the act of congress the district court had no power to order a sale which should confer upon the purchaser rights outlasting the life of French Forrest;" and the court therefore held that so much of the decree of the court in which the confiscation proceedings were had as was in excess of its powers was void. Windsor v. McVeigh, 93 U. S. 274, 23 L. Ed. 914, is also a case where the question as to when a judgment may be

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collaterally attacked is considered. In that case it was said: "The doctrine invoked by counsel that, where a court has once acquired jurisdiction, it has a right to decide every question which arises in the cause, and its judgment, however erroneous, cannot be collaterally assailed, is undoubtedly correct as a general proposition; but, like all general propositions, is subject to many qual ifications in its application. * * * Though the court may possess jurisdiction of a cause, of the subject-matter, and of the parties, it is still limited in its modes of procedure and in the extent and character of its judgments. It must act judicially in all things, and cannot then transcend the power conferred by the law. The doctrine stated by counsel is only correct when the court proceeds, after acquiring jurisdiction of the cause, according to the established modes governing the class to which the case belongs, and does not transcend, in the extent or character of its judgment, the law which is applicable to it." In the case at bar, when the court directed a joint, instead of a several, judgment, as prayed in the complaint, in the face of an express provision of the Code that the relief granted in the circumstances of this case could not exceed that prayed for, it did that which was beyond its power, and foreign to its authority, and hence without its jurisdiction. 1 Freem. Judgm. (4th Ed.) § 116. The fact that certain of the defendants appeared by demurrer did not authorize greater relief as against them than that demanded, because the right to such relief is predicated upon an answer. Neither is the general prayer for further relief of any avail in this instance. The Code provides that the complaint shall contain "a demand for the relief which plaintiff claims." Section 49, Mills' Ann. Code. The relief which the statute contemplates shall be granted in the absence of an answer is the relief demanded. A general prayer is not such a demand. Kelly v. Downing, 42 N. Y. 71; Bliss, Code Pl. (2d Ed.) §§ 160, 161. We are of the opinion that our conclusion. that the judgment of the county court should be affirmed is correct, and the petition for rehearing should therefore be denied. The original opinion is withdrawn, the petition for rehearing denied, and the judgment below affirmed. Affirmed.

On Petition for Rehearing.

PER CURIAM. The decision in this case is not based upon the fact that the trial court rendered a judgment against the defendants in excess of that demanded in the complaint. The amount of the judgment to which plaintiff was entitled was a matter within the jurisdiction of the court to determine, and, although it erred in this respect, such error aid not render the judgment void. The limitation of the Code necessarily implies that, in case no answer is filed, the judgment rendered must be of the character prayed for

The debt of the bank is his debt at the instant of its creation, and the debt of the bank is referred to only as a measure of the debt of the shareholder." In considering the liability after the suspension of the bank, Judge Blodgett, in Irons v. Bank (C. C.) 17 Fed. 309, says: "After a national bank, therefore, has become insolvent and has closed its doors for business, its shareholders' liability to creditors must be so far fixed that any transfer of such shares must be held fraudulent and inoperative as against the creditors of the bank. If shareholders at the time the bank suspended can evade liability by a transfer of their shares, those to whom they so transfer can also escape by the same method, even after suit is commenced. It seems, therefore, quite clear to me that those who are shareholders when a bank suspends must bear the burden imposed by the law in favor of creditors." And Mr. Justice Harlan, in Stuart v. Hayden, 169 U. S. 1, 18 Sup. Ct. 274, 42 L. Ed. 639, speaking of the subject generally, says: "The safety of a national banking association, so far as its creditors are concerned, depends largely upon the security given by the statutory provision entitling creditors to look to the individual liability of shareholders, including the liability of the estates and funds in the hands of executors, guardians, and trustees holding shares of national bank stock. One who holds such shares-the bank at the time being insolvent-cannot escape the individual liability imposed by the statute by transferring his stock with intent simply to avoid that liability, knowing or having reason to believe at the time of the transfer on the books of the bank that it is insolvent or about to fail. A transfer with such intent and under such circumstances is a fraud upon the creditors of the bank, and may be treated by the receiver as inoperative between the transferror and himself, and the former held liable as a shareholder, without reference to the financial condition of the transferee. The right of creditors of a national bank to look to the individual liability of shareholders, to the extent indicated by the statute, for its contracts, debts, and engagements, attaches when the bank becomes insolvent; and the shareholder cannot, by transferring his stock, require creditors to surrender this security as to him, and compel the receiver and creditors to look to the person to whom his stock has been transferred. This court has said that: "The individual liability of the stockholders is an essential element in the contract by which the stockholders became members of the corporation. It is voluntarily entered into by subscribing for and accepting shares of stock. Its obligation becomes a part of every contract, debt, and engagement of the bank itself.-as much so as if they were made directly by the stockholder instead of by the corporation. There is nothing in the statute to indicate that the obligation arising

upon these undertakings and promises should not have the same force and effect, and be as binding in all respects, as any other contracts of the individual stockholders.' If the bank be solvent at the time of the transfer,that is, able to meet its existing contracts, debts, and engagements,-the motive with which the transfer is made is, of course, immaterial. But, if the bank be insolvent, the receiver may, at least, without suing the transferee and litigating the question of his liability, look to those shareholders who, knowing or having reason to know, at the time that the bank was insolvent, got rid of their stock in order to escape the individual liability to which the statute subjected them. Whether, the bank being in fact insolvent, a transferror is liable to be treated as a shareholder, in respect to its existing contracts, debts, and engagements, if he believed in good faith at the time of the transfer that the bank was solvent, is a question which, in the view we take of the present case, need not be discussed, although he may be so treated, even when acting in good faith, if the transfer is to one who is financially irresponsible."

From these cases it seems quite clear that the liability of Reithmann was that of a principal debtor, not of a surety; that he became so liable when he became a stockholder, and that any transfer of his stock after the bank closed its doors was inoperative as against the creditors of the bank; and that whether his assignee accepted or rejected the stock did not in the slightest degree change his liability. His contract was, when he bought his shares, to respond to the demand of the comptroller, in such sum as the comptroller should deem necessary, up to the par value of his stock, to pay the debts of the bank. He agreed to and did become primarily liable for the debts of the bank, and this without regard to the ability of any other stockholder to so respond. He thus, upon the bank's becoming insolvent and closing its doors, became the debtor, to the extent of the par value of his stock, of the creditors of the bank; and thereafter nothing could be done to change his liability, and the creditors only awaited the action of the comptroller to enable them or the receiver to collect from the shareholders. It being established, therefore, by the clear weight of authority, that Reithmann was a debtor of the creditors of the bank, and that the receiver of the bank, when so required by the comptroller, took the place of the creditors, it became his duty to file his claim against the estates of Reithmann. The decision of the district court in allowing the claim being, in our opinion, correct, it is accordingly affirmed. Affirmed.

On Petition for Rehearing.

GABBERT, J. In the petition for rehearing two points are made: (1) That the assignee never treated the bank stock as an

asset, or assumed control of it in such way as would make the assets in his hands subject to the payment of the pro rata share of the indebtedness arising by the assessment of the comptroller; and (2) that at the time of the assignment there was no claim growing out of the ownership of the stock by Reithmann which could be urged against the estate. It is true, as stated, that the assignee took no affirmative steps by assuming control of the stock which in any manner determined the right of the receiver to have the claim represented by the stock allowed, but that is not the pivotal question. The real one is simply this: Does not the law, independent of any action on the part of the assignee, make this a provable claim against the estate? When the assignment was made, Reithmann, under the facts of this case, was liable on this stock to the creditors of the bank. No assessment had been made by the comptroller, but the only effect of this step was to determine the amount of this liability, and to permit an action to be maintained thereon. Petition for rehearing denied.

(28 Colo. 392)

CASSERLEIGH v. GREEN. (Supreme Court of Colorado. April 8, 1901.) MISCONDUCT OF ATTORNEY-ACQUIRING INTEREST ADVERSE TO CLIENT-ACTION ON

CONTRACT-APPEAL-JURISDICTION.

1. An appeal will lie to the supreme court from a decision of the court of appeals affirming a judgment denying appellant's claim to an interest in a freehold.

2. A complaint which alleges that defendant was employed as attorney by plaintiff with the understanding that defendant was to have a half interest in a contract to be entered into by plaintiff, and that defendant agreed to procure the execution of such contract, but wrongfully secured the contract for himself, and that plaintiff is entitled to a half interest therein, states a cause of action based on an express contract.

3. The employment of an attorney to prosecute a suit for heirs by a person having contracts with certain of the heirs entitling him to a certain interest in the proceeds of the suit does not prevent the attorney from acquiring similar contracts in his own right from other heirs.

4. Where plaintiff's right of recovery is based on either an express or implied contract, and the judgment of the trial court on conflicting evidence is based on the nonexistence of either, the action of the court of appeals in affirming the judgment cannot be reviewed.

Appeal from court of appeals.

Suit by J. H. Casserleigh against Thomas A. Green for an accounting. On the death of defendant, his heirs were substituted. From a decision of the court of appeals affirming the judgment in favor of defendant (56 Pac. 190), plaintiff appeals. Affirmed.

F. J. Mott and Geo. W. Taylor, for appellant.

PER CURIAM. This cause is here on appeal from the court of appeals, and our juris

diction to review its judgment is properly invoked, for appellant's claim to an interest in a freehold was resolved against him by the trial court, and the judgment was affirmed by the court of appeals for the reasons given in its opinion published in 12 Colo. App. 515, 56 Pac. 189. Therein a detailed statement of the facts is found. Only such as will elucidate our opinion will here be given. William J. Wood died, owning an interest in the Emma mining claim at Aspen, Colo. From his heirs at law, to whom such interests descended, conveyances were obtained by Jerome B. Wheeler and others, which the grantors sought to have set aside upon the ground that they were procured by fraud. William J. Wood was not a nativeborn citizen of the United States, and it was deemed essential by the heirs that proof be secured of his naturalization, to be used in the trial of an action which they contemplated bringing to compel a reconveyance of their respective interests. The plaintiff, Casserleigh, was a private detective, and claimed to be, and probably was, in possession of evidence tending to establish this disputed fact, and the names and residence of all of the heirs at law. He had entered into contracts with several of the sons of William J. Wood, whereby, in consideration of his agreement to produce such evidence, and pay all costs and expenses of the anticipated action, he was to receive a two-thirds interest in whatever was recovered against the alleged fraudulent grantees. The statute of limitations was about to run against the cause of action based upon the alleged fraud, when Casserleigh went to defendant, Thomas A. Green, an attorney, and employed him, as he says, for himself, and on his own account, but, as Green asserts, in behalf of the Wood heirs, to bring the necessary action in the circuit court of the United States for the district of Colorado, and at that time assigned to Green one-half of his interest in the contracts mentioned. Mrs. Billings was the widow and one of the heirs at law of William J. Wood, and to her, under the statutes of this state, one-half of his estate descended. Haste was necessary in the beginning of the action to prevent the bar of the statute of limitations; but at the time of the bringing of the suit, which was instituted in the federal court in the month of April, 1888, neither Casserleigh nor Green was authorized to represent Mrs. Billings. Casserleigh had, however, previous to the employment of Green, endeavored to secure from Mrs. Billings a contract similar to that with the other heirs, but was unsuccessful, and of that fact Green was apprised at the time of his employment; but, in order to save her rights, she was made a party to the action, as Casserleigh says, at his instance and request, but, as Green maintains, at the request of one of her co-plaintiffs; and that he (Green), as the record abundantly shows, after the suit was begun, notified her of