except that which they are to get from the railroad company. As the statute prohibits them from having any interest therein, their answers and cross-complaints fail to state a cause of action against either the owner or the railroad company, for which reason, they having declined to amend, the action was properly dismissed as to them."

When this question is eliminated (which it was by the former opinion), the only excuse left for their petition of intervention is their claim that they have paid to the owners $2,500.00 upon insurance policies, which they did not owe, for which reason the owners owe them this amount with interest and should pay it back. As said in the other case, in substance, whether they do or do not is not proper to be determined in this action. These claims, so far as this case is concerned, are just the same as though they claimed the owners were owing them any other debt. It is not a ground for intervention in a suit of this kind, and especially so where, by statute, they are prohibited from having any interest in the cause of action. If they have claims against the owners for moneys had and received, or otherwise, their remedy is the same as any other creditor. If the owners are non-residents, as they allege, our statutes have provided methods of reaching property which they have in the state. If insolvent, as they also claim, laws are provided to reach such cases, but none of these facts justify a petition of intervention for the purpose of obtaining a lien upon a judgment, or the claim upon which it is awarded, which our statute prohibits them from having any interest in by reason of their having written policies of insurance upon the property burned.

The application for supersedeas will be denied and the judgment affirmed.

Supersedeas denied; judgment affirmed.

Decision en banc.

CHIEF JUSTICE WHITE dissents.

Decided February 5, A. D. 1917. Rehearing denied April 2, A. D. 1917.

[No. 9081.]

DENVER PUBLISHING COMPANY V. FARRELL.

APPEAL AND ERROR-Where Error Lies. The relation of remedies to rights is fundamental, and cannot be disregarded at will. No objection having been made to the entry of judgment, and no motion for a new trial filed (Rules of Practice 19), the judgment is affirmed.

Error to Denver District Court. Hon. H. P. BURKE, Judge.

Mr. M. H. KENNEDY, Mr. STEPHEN W. RYAN, for plaintiff in error.

Mr. HOWARD L. HONAN, Mr. CLARENCE R. ANDERSON, for defendant in error.

CHIEF JUSTICE WHITE delivered the opinion of the

court.

Farrell recovered judgment for a small sum against The Denver Publishing Company as damages, and the latter brings the cause here for review.

If error intervened, we are, neverthless, unable to grant relief upon the record before us. No objection was made to the entry of the judgment; nor does the record disclose that a motion for a new trial was filed. We decline to review the record in the absence of an objection to the judgment and assignment of error as to its entry. Pettit v. Mayhew, 43 Colo. 274, 95 Pac. 939; Downing v. Ernst, 40 Colo. 137, 92 Pac. 230.

This is equally true because of the failure to file a motion for a new trial and take the ruling of the court

thereon. (Rule 19, Practice and Procedure in Civil Cases, effective September 14, 1914.) The relation of remedies to rights is fundamental and cannot be disregarded at will. The powers invested in this court may only be exercised in substantial compliance with the law and rules governing practice and procedure. The judgment is, therefore, affirmed.

Mr. JUSTICE GARRIGUES and Mr. JUSTICE SCOTT

concur.

Decided February 5th, A. D. 1917. Rehearing denied April 2, A. D. 1917.

[No. 8336.]

DENVER & RIO GRANDE RAILWAY Co. v. WILSON.

1. CONSTITUTIONAL LAW-Federal Statute-Supremacy of. The Federal Statute regulating the liability of interstate carriers to their employees supersedes and displaces the provisions of the State Statute within its purview. The Federal Statute conferring upon the personal representative of the servant of a common carrier engaged in interstate commerce a right of action for the death of such servant, attributable to the negligence of the master (35 Stat. 65, c. 149; 36 Stat. 291, c. 143) the widow is not permitted to maintain an action under the statute of the State. Defendant was a common carrier, engaged in both interstate and intrastate commerce. A train carrying such commerce had been derailed, obstructing the track. Deceased and other employes were sent to remove the obstruction. To effect this, a temporary track had been constructed around the derailed train, in order to give passage to trains carrying interstate commerce. Deceased had been sent for oil, with which to oil the connection of the temporary track with the main track, and while going or returning upon this errand, was killed by an explosion, attributed to the negligence of defendant. Held, deceased was engaged in interstate commerce at the time of his death.

2. -Pleading. That the facts which bring the case within the Federal Statute appear only in the testimony is sufficient to give that statute sway. It is not required that the facts should appear by the

pleadings.

Error to Chaffee District Court. Hon. CHARLES A. WILKIN, Judge.

Mr. E. N. CLARK, Mr. J. A. MARSH, Mr. A. G. Lucas, for plaintiff in error.

Mr. G. K. HARTENSTEIN, for defendant in error.

CHIEF JUSTICE WHITE delivered the opinion of the

court.

Defendant in error, hereinafter referred to as plaintiff, recovered a judgment in damages against plaintiff in error on account of the death of her husband, George D. Wilson. The complaint alleged that defendant was a Colorado corporation and owned and operated a railroad, "in and through the State of Colorado"; that on the 6th day of October, 1912, it was engaged in building a temporary or "shoofly" track around a freight wreck on its road, near a designated station in this state, and, in the construction thereof, placed a quantity of giant powder upon the surface of two large rocks, approximately one hundred and forty-eight feet apart, on the line of the temporary track, and carelessly, recklessly and negligently, without giving proper notice of its intention so to do, exploded the same; that plaintiff's husband was at the time an employee of the defendant, and engaged in the performance and discharge of his duties as such employee, and was then and there, by one of such explosions, killed, without fault on his part; that plaintiff was dependent upon her husband for support, and by reason of his death was damaged in the sum of $5,000, for which she asked judgment with interest from the date of filing the complaint. The answer admitted the corporate existence of the defendant, the nature and character of its business, the relationship of plaintiff to deceased, and his employment by defendant as alleged in the com

plaint; denied that the death of plaintiff's husband was caused by defendant's negligence, and alleged that it was due to his own negligence.

At the close of the evidence defendant questioned the right of plaintiff to maintain the action and asked that the jury be instructed to the effect that if a cause of action existed under the facts and circumstances disclosed, it could be prosecuted only by the personal representative of deceased, and not by plaintiff in her individual capacity. The requested instruction was refused and, over the objection of the defendant, the cause submitted to the jury upon the theory that the state law controlled.

As no right of action existed at common law, in anyone, to recover damages for the death of a person resulting through the negligence of another-Michigan Central R. R. Co. v. Vreeland, 227 U. S. 59, 57 L. Ed. 417, Ann. Cas. 1914C, 176-it is essential that the cause of action be based on some applicable statute. The complaint stated a cause of action under the state law, but there was a Federal statute-35 Stat. 65 c. 149; 36 Stat. 291 c. 143-relating to the liability of railroads when engaged in interstate commerce, for the death, through their negligence, of any of their employees, while engaged in such commerce, and it becomes necessary to determine which of these statutes is applicable to this case. The two statutes cover the same subject, are unlike in substantial respects, and cannot occupy the same field. This has been settled by the Supreme Court of the United States in numerous decisions. Second Employers' Liability Cases (Mondou v. N. Y., N. H. & H. R. Co., 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. [N. S.] 44); Taylor v. Taylor, 232 U. S. 363, 34 Sup. Ct. 350, 58 L. Ed. 638; St. Louis, S. F. & T. Ry. Co. v. Seale, 229 U. S. 156, 33 Sup. Ct. 651, 57 L. Ed. 1129,