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FLETCHER AND GERELDS y. STOWELL.

1. JURISDICTION, NOT LIMITED TERRITORIALLY.-No territorial limit is fixed by the constitution to the civil jurisdiction either of the district courts or of the county courts.

2. RECORDS OF COUNTY COURTS.-PRESUMPTIONS.-As to matters within the jurisdiction of county courts, their records are supported by the same presumptions and intendments of law as the records of district courts.

3. CODE APPLICABLE TO COUNTY COURTS.-The provisions of the code concerning the place of trial of civil actions are applicable to county courts as well as to district courts.

4. VENUE OF CIVIL ACTIONS NOT JURISDICTIONAL.-The bringing of an action in an improper county is not a jurisdictional or fatal defect; the remedy is to apply to the court to change the place of trial; and the duty of making such change does not devolve upon the court of its own motion.

5. REMEDY MAY BE WAIVED.-Before it is incumbent upon the court to change the place of trial, good cause must be shown by the party applying; and this remedy is a privilege which may be waived, as by failing to appear.

Error to County Court of Lake County.

THIS was an action brought by Stowell in the county court of Lake county for the foreclosure of a mortgage of real property situate in Eagle county. The defendants being personally served with summons, made default; and thereupon a decree was rendered providing for a sale of the mortgaged premises, cutting off the interest of the defendant Gerelds as second mortgagee, and directing that if the proceeds of the sale were insufficient to satisfy the mortgage debt, the plaintiff have judgment and execution for the balance against the defendant Fletcher. The defendants bring the record to this court by writ of error.

The provisions of the Code of Civil Procedure specially referred to in the opinion are as follows:

"Sec. 25. Except when otherwise provided, actions for the following causes shall be tried in the county in which the

subject of the action or some part thereof is situated, subject to the power of the court to change the place of trial as provided in this act.

"Third-For the foreclosure of a mortgage of real pro

perty.

"Sec. 29. The court may, on good cause shown, change the place of trial in the following cases:

"First-When the county designated in the complaint is not the proper county."

Messrs. RUCKER & EWING, for plaintiffs in error, WIL LIAM FLETCHER, pro se.

S. D. WALLING, for defendant in error, ELLERY STOWELL, pro se.

MR. JUSTICE ELLIOTT delivered the opinion of the court.

The several assignments of error question the jurisdiction of the county court on the ground that the property embraced in the mortgage sought to be foreclosed, was wholly situate in a county different from the one in which the court was held.

Before the adoption of the code the common law distinction between local and transitory actions was more or less definitively preserved in this jurisdiction; and a mistake in laying the venue of a cause was often fatal to the maintenance of the action.

The constitution of the state adopted in 1876, confers original jurisdiction of all causes upon the district courts, and provides that the county courts shall have unlimited original jurisdiction in certain matters, and such other civil and criminal jurisdiction as may be conferred by law within. certain limits as to the amount of the debt, damage, claim or value of property involved. No territorial limit is fixed

by the constitution to the civil jurisdiction either of the district courts or of the county courts. Const., art. 6, sections 11 and 23.

By statute, jurisdiction has been conferred upon the county courts concurrent with the jurisdiction of the district courts in all civil actions, suits and proceedings, subject to the constitutional limit as to amount and value as aforesaid. The county courts are courts of record, and as to matters within their jurisdiction under the constitution and laws of this state, their records are supported by the same presumptions and intendments of law as the records of district courts. 1 Mills' Annotated Statutes, sec. 1054; Hughes v. Cummings, 7 Colo. 141; Dusing v. Nelson, 7 Colo. 187; Behymer v. Nordloh, 12 Colo. 352; In re Rogers, 14 Colo. 20.

Subject to the foregoing principles of constitutional and statutory law, the Code of Civil Procedure governs the question presented upon this review. Chapter 2 of the Code concerning venue, or strictly speaking, "The place of trial of civil actions," is applicable to county courts as well as to district courts. A careful consideration of this chapter leads to the conclusion that it was not intended to limit or circumscribe the jurisdiction of the courts by rigid rules regulating the venue in civil actions. The provisions of the chapter are most liberal in this respect. They do not, in general, speak of the county in which the action must or shall be brought or commenced, but of the county in which the action shall or may be tried, subject, also, to the power of the court to change the place of trial as provided in the act itself. Such is the language of section 25 which is particularly applicable to an action like the one under consideration for the foreclosure of a mortgage of real property.

Again, from the language of section 29 it is apparent that the bringing of an action in an improper county is not regarded as a jurisdictional or fatal defect. If it were so regarded, a plea in abatement or to the jurisdiction of the court would be the proper remedy. Instead of this, the statute expressly provides for a change of the place of trial.

The duty of changing the place of trial is not devolved upon the court of its own motion. The change is required to be made only "on good cause shown." These words plainly imply that a party considering himself aggrieved by the bringing of the action in a wrong county, or considering himself likely to be prejudiced by the trial thereof in the county where the action is pending, must apply to the court and show good cause therefor, in order to have the place of trial changed. Such change may be applied for on the ground that the action has not been brought in the proper county, considering the location of the subject of the action, as in the present case; or it may be applied for on the ground that the ends of justice, or the convenience of parties and their witnesses, will be better subserved by the change. But in any case, before it shall be incumbent upon the court to make the change, good cause-that is, some statutory ground -must be shown to the court by the party applying for such change; and this remedy is a privilege which may be waived, as by failing to appear. These conditions are fortified, though not controlled, by the fact that chapter 3 of the Code concerning the manner of commencing civil actions, does not designate any particular county within which the summons must be personally served. Valid personal service in an action may be obtained in any county in the state. Code, sections 37, 39, 44. Watts v. White, 13 Cala. 324; Houck v. Lasher, 17 How. Pr. (N. Y.) 521; Campau v. Dewey, 9 Mich. 404.

There are conflicting decisions upon this subject. But the views above expressed appear to us reasonable and satisfactory; besides, they are sustained by the decisions of the highest courts of the states from which our Code was borrowed. The judgment of the county court is affirmed.

Affirmed.

VOL. XVII.-7

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DENVER & RIO GRANDE RAILROAD V. RYAN.

1. NEGLIGENCE, TO DISREGARD MUNICIPAL ORDINANCES.-Municipal ordinances requiring the ringing of the locomotive bell whenever a steam engine is approaching or crossing a public street, and requiring the presence of a flagman at important crossings, to the end that people may be suitably and seasonably warned of the approach of railroad trains, are reasonable and proper regulations; and failure by a railway company to observe such an ordinance is negligence.

2. NEGLIGENCE, NOT TO LOOK AND LISTEN.-It is negligence and carelessness for a person to go, stand, or be upon the track of a railroad without keeping watch both ways for trains; also, it is the duty of a person going upon a railroad track to look and listen for the approach of trains and observe the surroundings, and a failure so to do is negligence.

3. NEGLIGENce, Burden oF PROOF.-In an action for negligence the plaintiff is not entitled to recover unless the negligence of the defendant be affirmatively established by a preponderance of the evidence.

4. CONTRIBUTORY NEGLIGENCE, BURDEN OF PROOF.-Where a defend-
ant relies upon the contributory negligence of the plaintiff as a
defense, such contributory negligence must be shown by a pre-
ponderance of the evidence or the defense will be unavailing.

5. OBJECTIONS TO INSTRUCTIONS, REASONABLE AND NECESSARY.—
While the code dispenses with the necessity of taking exceptions to
the giving, refusing, or modifying instructions, it does not do away
with the reason or necessity for making objections in some appro-
priate way to instructions in such time and manner as to give the
trial court an opportunity to correct the same if found erroneous.
6. INSTRUCTIONS, WHEN NOT GROUND for REVERSAL.-If an instruc-
tion be given at the request of the defeated party, or if the same
be not prejudicial to such party, it is not ground for reversal even
if erroneous.

Appeal from District Court of Arapahoe County.

THIS action was brought by Mary Ryan, plaintiff below, to recover damages for the death of her husband Patrick Ryan. In her complaint she alleges that on September 17, 1889, her husband was run over and killed by an engine and tender of the defendant The Denver & Rio Grande Railroad

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