ing to secure or were operating the Mananita and Higueras properties.

There is another phase of the case which clearly demonstrates that Hollingsworth is not entitled to an accounting for profits, if any, arising from deals made by Tufts, after he left Kansas City for New York in 1900. Hollingsworth testified that Tufts told him if he secured the money on the note we have mentioned, which would enable Tufts to go to New York, the latter said "You need not worry, you will be taken care of, you will be equal in anything I do if you will get me this money." This is not the agreement relied upon by plaintiff as alleged in his complaint but a subsequent one. However, it is not necessary to base a decision on this proposition, because it appears from the findings of the court and the referee, that notwithstanding the testimony of plaintiff and his witnesses, relating to admissions on the part of Tufts, (which he denies), that Hollingsworth was interested with him, the latter is not entitled to an accounting.

The court found the terms of the contract between the parties to be, that plaintiff agreed to furnish funds to enable defendant to make a trip to Mexico for the pur. pose of discovering and locating mines, and determined that whatever mines or mineral properties the defendant discovered or acquired by discovery or knowledge gained on the trip, they should share equally. The referee was directed to ascertain what properties the defendant dis covered or acquired on that trip, and determined the plaintiff was entitled to an accounting because defendant "got acquainted with and acquired knowledge of" the properties held by the Grand Union Mining Company, during his trip in 1898 and '99, so that even if the agreement between the parties of October, 1898, was not limited to the Higueras Mine, the evidence establishes be

yond question that the plaintiff, on the finding of the court and referee, is not entitled to any profits growing out of either the Sonora and Sinaloa or Grand Union deals. None of the properties of these companies were discovered or acquired by defendant, nor did he obtain any knowledge of them, on his trip in the fall of 1898. The time occupied on that trip was but 58 days, and he was at the Higueras mine and vicinity only two or three days. There is no testimony that he learned or knew anything regarding the properties afterwards obtained by the Sonora and Sinaloa and Grand Union companies during this time. We are not advised where the properties of the former company are located with reference to the Higueras, but it does appear, that the properties of the Grand Union are located from thirty to sixty miles distant from that property. In brief, there is not a syllable of testimony tending to prove that Tufts gained any knowledge of the properties of the companies mentioned, on his first trip. On the contrary, the testimony establishes that he knew nothing regarding them until long subsequent. He may have learned that the country adjacent to the Higueras was a promising district, but that will not justify a finding that he acquired or gained knowledge of any particular property, in the absence of testimony to support it. It appears that Hollingsworth received in the way of stock, all he was entitled to, in any manner growing out of the Mananita and Higueras transactions, and limiting his rights as found by the court and determined by the referee, to acquisitions or knowledge gained on the trip in the fall of '98, plaintiff is not entitled to an interest in the subsequent deals in which Tufts was interested or which he may have consummated. The law is well settled that the partnership relation between parties engaged in acquiring mining properties for their joint benefit must exist at the

time such properties are acquired by one of the parties to such an arrangement, in order to entitle the other to an interest therein. Johnstone v. Robinson, 16 Fed. 903.

After the report of the referee was filed, plaintiff filed a motion to confirm that report. The defendant also filed exceptions and objections to the report, in connection with a motion for a new trial. These several matters were later considered by the court, with the result that the motion to confirm was denied, and it was further ruled that the evidence was insufficient to sustain the report; that it be set aside; that defendant was entitled to judgment for his costs. Thereupon additional time to a day certain was granted plaintiff to take such further steps as he might be advised. After expiration of this time the record discloses that no further action was taken by plaintiff, and that defendant was permitted to withdraw from his objections and exceptions, his motion for a new trial, and thereupon judgment was rendered dismissing the action and taxing the costs to plaintiff. Counsel for plaintiff now contend that when defendant withdrew his request for a new trial, the court was without authority to consider the objections and exceptions to the report, and that judgment should have been rendered thereon in his favor. Our Civil Code (Revision of 1908), sections 231, 232 and 233, provide in substance, that the finding of the referee shall stand as the findings of the court, and upon being filed with the clerk, judgment shall be entered thereon unless objected to by either party, "by filing a motion for a new trial as hereinafter provided"; that when the report is filed, the clerk shall notify the parties, and judgment shall not be entered thereon until five days after such notice, nor until the court has passed upon the objections specified in the motion for a new trial; that the court may grant a new trial, or may modify the findings of the referee, and enter judg

ment, when it is manifest from the evidence reported what the findings and report should be. Under these several provisions it is clear that withdrawing the request for a new trial did not deprive the court of authority to enter judgment on the objections and exceptions to the report. The court is expressly authorized to grant a new trial or enter judgment, and when it determined that judgment should be rendered for the defendant, a new trial was not necessary. When the court announced that judgment would be rendered for the defendant, the effect was to overrule the motion for a new trial, and withdrawing the request therefor in these circumstances did not change the situation.

It is also urged that the court erred in taxing the costs to plaintiff, because, prior to reference, it had determined that a partnership existed which had not been settled, and this finding not having been set aside the court should have ordered a dissolution of the partnership and taxed the costs to defendant. When it appeared to the court from the testimony taken before the referee, that the partnership originally existing between the parties had been settled, in that plaintiff had received from defendant all to which he was entitled growing out of their joint ventures, there was nothing upon which to base an accounting, and in such circumstances their partnership was dissolved by operation of law. The effect of the judgment as finally entered by the court was to set aside its interlocutory finding that a partnership between the parties existed which had never been adjusted.

The former opinion is withdrawn and this substituted in lieu thereof, but as previously announced, the judgment of the District Court is affirmed.

Judgment affirmed.

Decision en banc.

Mr. JUSTICE SCOTT and Mr. JUSTICE TELLER not participating.

Decided January 3, A. D. 1916. Rehearing granted July 3, A. D. 1916. Judgment affirmed on rehearing January 2, A. D. 1917.

[No. 9063.]

JONES V. JONES.

DIVORCE-Alimony-Counsel Fees, etc. Where in a wife's action for a divorce, the marriage, the destitute condition of the wife, and the husband's ability are shown, temporary alimony, counsel fees, and costs must be awarded.

Error to Denver County Court. Hon. W. C. HOOD, JR., Judge.

Mr. EDWIN N. BURDICK, for plaintiff in error.

Mr. RAYMOND S. SULLIVAN, for defendant in error.

Mr. JUSTICE WHITE delivered the opinion of the court.

An action was instituted in the trial court by Bessie Jones against her husband, George T. Jones, for divorce. Plaintiff also petitioned the court to award her alimony pendente lite, court costs, and attorney's fees. An answer and cross-complaint was filed in which the marriage between the parties was admitted, the grounds alleged by plaintiff for divorce denied, and allegations of misconduct on the part of plaintiff set forth, and a decree of divorce prayed for in behalf of defendant. To the answer and cross-complaint, plaintiff filed her replication, and thereafter a hearing was had upon the petition for alimony, court costs and attorney's fees only. The court ordered the defendant to pay the costs of the proceeding, a small sum-$25.00-as a fee for plaintiff's attorney, and $5.00 per week for the support and maintenance of