CAMPBELL, J. (after stating the facts). An examination of the voluminous record reveals the fact that the defendant failed to save any exceptions to the decree of the court dissolving the bonds of matrimony, or to the award of alimony. Under these circumstances it is the well-settled practice of this court not to review the decree upon the evidence. Jerome v. Bohm (Colo. Sup.) 40 Pac. 570. Hence we are precluded from determining the sufficiency or insufficiency of the evidence to sustain the decree of divorce or the judgment for alimony. Other errors, however, have been assigned relating to the rulings of the court during the trial, to which exceptions were properly taken and preserved, and these we shall proceed to consider. The principal objection urged is to the sufficiency of the complaint. There is in it no allegation that the defendant visited any act of physical or personal violence upon the plaintiff, but the allegations of cruelty refer to words spoken by the defendant of and concerning the plaintiff, and to ill treatment and conduct towards plaintiff, destructive of his peace of mind, health, and happiness, and endangering his life, which conduct was continued by the defendant throughout the existence of their married life. In its essential features the complaint is substantially similar to that in the case of Sylvis v. Sylvis, 11 Colo. 319, 17 Pac. 912. Counsel for plaintiff in error apparently contends that that case is not authority for the doctrine that extreme cruelty may consist of words only, and of personal treatment and conduct short of acts of personal or physical violence, and he cites a number of cases in support of his theory. Without attempting a review of the authorities, it is sufficient to say that this court adheres to the rule announced in the Sylvis Case, supra, and the cases therein cited. That case is against the defendant, and we shall not attempt to repeat the argument of the decision.

The defendant objected to the introduction of any testimony by the plaintiff in support of the allegations of the complaint for the reason just stated, but the court properly overruled the objection. In his brief, counsel criticises the complaint because of the Indefiniteness of its allegations. Had timely and proper application been made by the defendant for an order requiring the plaintiff to make more specific the allegations of cruelty, the court might properly have granted such request; but by neglecting to make such application, and by answering the complaint, the defendant has waived such objection, if it be good at all, and no error was committed by the court in so deciding.

In the first instruction asked by the defendant a summary of the allegations of the complaint is made, and, after defining to the jury the meaning of extreme cruelty, the instruction concludes with this sentence: "The causes which the law deems extreme cruelty must be grave and weighty, and such as show an

"

absolute impossibility that the duties of the married life cannot be discharged. We suppose that the use of the word "cannot" was the result of an error in transcribing, and that counsel employed the word "can." In the same connection the instruction also states that the acts of defendant towards the plaintiff must have been such as to have destroyed his peace of mind or injured his health "to such an extent as to make the married state impossible to be endured, and rendered life itself almost unendurable." The court modified the instruction as asked by striking out the words which are italicized in the first quotation above, and substituting in the second quotation for the words "almost unendurable" the words "a great burden." The law does not require that these acts of cruelty shall show an absolute impossibility of the parties being able to live together as husband and wife, or that life should thereby be rendered "almost unendurable" for the one against whom they are perpetrated. As was said in the Sylvis Case: "To authorize a divorce on the ground of cruelty, the evidence should show that the acts complained of are such as that danger to life, limb, or health wil! naturally arise from the continued commission of such acts; but it is not necessary that the evidence should show that actual physical violence has been used. Extreme cruelty may be as effectually caused by conduct which produces mental suffering, and robs complainant of his or her peace of mind, as by blows inflicted; and to many persons the burden of the mental suffering will be much harder to bear than the burden of any ordinary physical suffering. These views are sustained by many recent and well-reasoned decisions." All of the words quoted could have been safely stricken out, as the court had elsewhere fully instructed the jury on the law of the case in this particular, and the modifications were properly made.

In the complaint there is, among others, a general allegation that the defendant had unjustly charged the plaintiff with the commission of illegal acts, of which he was innocent; but no particular act is mentioned. In proving his case, plaintiff offered a letter, written by defendant to a Mrs. Waddell, which was admitted by the court. In this letter is a brief reference to the plaintiff as a forger. The evident object of introducing this letter was not to prove that defendant had charged plaintiff with the commission of forgery, but the letter was admitted to establish other legitimate issues involved. Nothing is claimed by plaintiff by reason of such charge in that letter, if such it be, and in the instructions to the jury the court practically withdrew it from their consideration. On the cross-examination of plaintiff, as well as when defendant was introducing her own testimony, she offered to prove that plaintiff was guilty of a number of forgeries for which he had been indicted by the grand jury of Arapahoe county, but upon which trial was never had.

The court refused such offer, and the plaintiff in error with much earnestness complains of this ruling, because, as she says, if the illegal act, or crime, which she preferred against plaintiff was in fact committed by him, then such charge is true, and to speak the truth of plaintiff cannot constitute extreme cruelty, or be taken as any evidence thereof. Without so holding, but conceding, for the sake of the argument, the soundness of this contention, let us see if there is any issue making such evidence admissible. Giving to the denials of the answer a construction most favorable to defendant, there is only a specific denial that the defendant ever made the accusation of forgery against the plaintiff. The complaint alleges that the defendant accused plaintiff of illegal acts of which he was innocent. The answer merely denies that defendant made such charge. There is nothing in defendant's pleading in the nature of a plea of confession and avoidance. Therefore the defendant, having denied that she made such accusation, and neither having admitted the making of the same nor having alleged the truthfulness thereof, and the plaintiff not relying upon the same for relief, there was no error in the court's refusing to admit evidence to show that the plaintiff had been guilty of forgery.

The other errors assigned, only some of which are discussed by counsel in his brief, we have examined with care, and find that no substantial error was committed by the court. The jury was fairly instructed as to the law of the case, and the rulings of the court in admitting testimony and refusing the same were proper, and based upon the doctrine announced in the Sylvis Case, supra. Instructions which the defendant asked and which were refused by the court were properly refused, some because they had already been given by the court in so far as applicable to the cause, and others because they were drawn upon the theory which the defendant has sought to maintain in this court, to the effect that acts of physical violence must be committed before extreme cruelty can result, which contention is not only not upheld by this court, but has been heretofore expressly repudiated. For these reasons the decree of the court dissolving the bonds of matrimony, and awarding the defendant alimony in the sum of $5,000, is affirmed. Affirmed.

was barred, and he has no right of action against the sureties on the administrator's bond, notwithstanding a failure by such officer to file his inventory, as required by Gen. St. Colo. 1883, § 3557.

2. The absence of the administrator at the time the claim was filed will not save the creditor from the consequences of his neglect to have his claim adjudicated.

3. A joint action cannot be maintained against one of the sureties on an administrator's bond personally, and the administrator of another surety in his representative capacity.

Appeal from district court, Arapahoe county. Action by the people of the state of Colorado, for the use of Simon Reid and others, against Rachel Metz, administratrix of the estate of Richard Metz, deceased, and another, to recover on an administrator's bond. From a judgment for plaintiffs, defendants appeal. Reversed.

Fillius & Davis, for appellants. Reuben E. Robinson, for appellees.

BISSELL, P. J. This suit against the sureties of the administrator of Newman Metz, to compel them to pay a judgment alleged to have been obtained against the decedent, has resulted in a record which abounds in legal informalities and some very significant errors. In March, 1891, Henry Metz, who was the father of Newman, filed a petition in the county court wherein he stated the death of his son, the estimated value of the personal estate, the absence of wife or children, and prayed an appointment as administrator. The petition was granted. He filed a bond in the sum of $1,000, conditioned according to the statute, and letters of administration were issued. The bond was signed by Richard Metz and M. Hyman as sureties. Subsequently the administrator published a statutory notice to creditors, requiring them to present their claims at the May term of the county court in Arapahoe county on the second Monday of May. Reid, Murdoch & Co., who are the appellees, took no steps under the advertisement. In the July following they filed their claim in the county court, but neither gave, nor undertook to give, any notice to the administrator of their proceeding. The claim, as filed and proved in this suit, was simply a transcript of the judgment docket. This transcript contained nothing but the title of the case; its number; a statement of the judgment debtors, H. Metz and Newman Metz, partners as H. Metz & Son; the names of the judgment creditors, Simon Reid et al.; and the amount of the judgment, which was about $740. This account was verified in Cook county, Ill., by the affidavit of Simon Reid. The affidavit simply stated that the annexed account was just and unpaid. It appeared by the testimony of the claimants' attorney that on some day, but whether before or after the claim was filed is not made manifest, an inquiry was made at the residence of Henry Metz as to his whereabouts. The attorney was informed by some one that the administrator

had gone to Chicago, and was probably living there. It was conceded the administrator did not file an inventory as required by section 3557 of the General Statutes of 1883. During the course of the proceedings, Richard Metz, one of the sureties, died. Thereupon the plaintiffs' attorney moved to substitute Rachel Metz as his administratrix. No objection was interposed, and an order was entered making Rachel Metz a party. When the case was submitted, the jury were directed to find for the plaintiff such damages as they might conclude he had sustained by reason of the administrator's failure to file an inventory. They promptly found a verdict for a sum which happens to be the exact equivalent of the estimated value of the personal property according to the administrator's petition. There was no evidence tending to prove that the administrator ever received any money, personal property, or estate of any description which belonged to the decedent. After the rendition of the verdict, judgment was entered against both Rachel Metz and M. Hyman for the amount of the penalty of the bond. The right to collect was limited to the damages assessed by the jury. The entry contained no reference to the capacity in which Rachel Metz defended, and, so far as concerns its terms, execution might go against her personally as well as against Hyman, the cosurety.

The whole theory of the plaintiffs' case seems to be that the sureties on the administrator's bond can be held for the benefit of any creditor of the estate on the simple proof of a failure of the administrator to file his inventory. There may be some little basis for the contention, because of the stringent provisions in sections 3632 and 3633 of the General Statutes of 1883. This legislation permits a recovery on an administrator's bond by any person who may be injured by the conduct of the representative. The enactment is a very broad one, and, in general, provides that any violation of the provisions of the chapter shall be treated as a devastavit, and shall entitle the party to maintain his suit. Even though this be conceded to be true in its broad scope, the deduction which counsel makes, that since, on proof of a devastavit, the common law made the administrator liable for all claims which the estate owed, therefore be is liable under this statute, is a non sequitur in its application to proceedings under our statute. Without specific reference to the sections, it may be said that chapter 95 of our General Statutes has provided a plan for the management of the affairs of the estates of deceased persons. Claims against an estate must be filed in the county court, and they stand in a certain relative order, and are entitled in that order to priority of payment. It is quite as necessary that the alleged credItor should file his claim with the county court, and have it allowed, or a judgment passed upon it, as it is that the administrator should do the things prescribed. The non

claim feature of the statute has received a very rigid construction. It was recently construed by the supreme court in the case of Reid v. Sullivan, 39 Pac. 338, at the last December term, though that case does not touch this particular feature of it. Reasoning by analogy from the doctrine expressed in that decision in an evidently well-considered opinion by Chief Justice' Hayt, it is manifest the creditor must file his claim, and have it allowed in order to preserve his rights. If he fails, he will be barred from any share in the distribution, and this whether his claim is secured or unsecured. In the present suit the plaintiffs proved the filing of a claim. They did not file it at the time designated by the administrator in his notice, nor did they appear then and ask to have it allowed. They had the right to file it subsequently, but then they must give notice to the administrator, and have their debt passed on. The absence of the administrator, if it were proved,--and there was no evidence of this fact,-does not excuse the creditor from procuring an allowance of his claim. The necessity to obtain an adjudication respecting these claims is apparent from the general provisions of the statute. The creditor must file his claim in the usual way, and the court is bound to render a judgment respecting its validity without further pleading. The entry which the court may make has all the force and effect of a judgment against the estate. If this were not true, it would follow that, in a case like the present, a party, without obtaining a judgment against the estate respecting the validity of his claim, might proceed against the sureties on the bond, and, making no proof respecting the existence, the justness, or the validity of his claim, obtain satisfaction from the sureties, when neither the principal nor the estate was in any wise responsible for the debt. Bank v. How, 28 Minn. 150, 9 N. W. 626.

The gross injustice which might result from the adoption of any other rule will be made quite manifest from the consideration of the present case. Reid, Murdoch & Co. filed a claim in the county court, which consisted simply of a transcript of the judgment docket. Of the filing they gave no notice to the administrator, and its validity was never passed on. So far as appears from the transcript, the judgment debtors were H. Metz and Newman Metz, partners as H. Metz & Son. This transcript did not establish any liability on the part of Newman Metz. If H. Metz and Newman Metz, copartners as H. Metz & Son, were sued as a firm for a firm liability, and only H. Metz was served, the judgment would simply bind the firm property, and only justify an execution against the personal assets of H. Metz. Under these circumstances, the judgment would in no event be a claim against the estate of Newman Metz, deceased, since the creditor, to establish Newman Metz's liability, must estab lish a transaction out of which a personal responsibility would arise. This the transcript

does not do. If it should be held these creditors might recover without a filing of their claim, they produced no evidence which entitled them to a judgment, for they did not prove that they were creditors of the estate. They should have produced the judgment, and showed that Newman Metz was served, or that he appeared in the action, and that judgment was rendered against him. Again, it might possibly turn out to be true that the claim had been paid by the copartnership, or that Reid, Murdoch & Co. had accepted the responsibility of H. Metz for the debt, and released Newman. It is thus seen that the filing of the claim in the county court proved nothing, and, unless there is an allowance and an adjudication, there is no establishment of the debt as against the estate, and no proof of its liability to pay. Without this, how Reid, Murdoch & Co. can recover the amount of their debt from the bondsmen is not easy of apprehension. People v. Hunter, 89 Ill. 392; People v. Allen, 8 Ill. App. 17; Peveler v. Peveler, 54 Tex. 53; Com. v. Wenrick, 8 Watts, 159. It is true the Hunter Case adjudges that the plaintiff may recover nominal damages, where he proves a breach of the bond resulting from a failure to comply with some technical requirement. That is a case where the plaintiff had a claim against the estate. When he proved a breach, but did not establish that the administrator had gotten any funds, the court held he might recover nominal damages. The present case does not show that Reid, Murdoch & Co. had any claim against the estate of Newman Metz, and, although they proved a breach of the bond, it is not easy to see how they acquired any right of action. They are not charged with the duty of seeing that the personal representative properly administers the estate which is intrusted to him. The statute only gives strangers a right to sue on the bond, when they have sustained some damage which they show. When the plaintiffs failed to prove that they had a claim against the estate, or that the administrator had received any assets, they failed to establish some of the essential elements of their cause of action. They were not injured by the misconduct of the administrator, and consequently there came to them no cause of action on the bond.

We are quite at a loss to understand the proceedings which were taken to make Rachel Metz a party to the suit. It is true counsel made no objection to the entry of the order, and we are probably under no obligations to express an opinion concerning it. Since this suit goes back for a new trial, it seems best to us to make a suggestion of the irregularities which have resulted from this procedure. It seems quite well settled in this state that the Code has not changed the common-law rule respecting the right to join people who are sued in their individual right with those who are brought in in a representative capacity; this matter very early received the con

The

sideration of the supreme court. Mattison v. Childs, 5 Colo. 78; Lamping v. Keenan, 9 Colo. 390, 12 Pac. 434. These cases hold that a separate action could be maintained against the survivor, Hyman, or probably a separate action against Rachel Metz, as the administratrix of the deceased surety, Richard Metz. But those cases clearly decide that a joint action cannot be maintained, and that no joint judgment can be rendered against them. As the distinction is very clearly expressed in the first case, if the suit is against Hyman, the judgment would be in reality de bonis propriis, and, if against the administratrix, it must of necessity be de bonis testatoris. In no event could the plaintiffs recover against Rachel Metz save in her representative capacity, and then, of course, only to the extent of the estate which may have come to her. form of the judgment is likewise irregular, and should never have been entered. It runs against M. Hyman and Rachel Metz jointly, is in form a personal judgment, and would warrant the issuance of an execution against the administratrix as well as against the survivor. That such a judgment is bad in form is clearly settled in the Childs Case, and the rule should have been observed in the preparation of the entry. We do not intend by what we have said to adjudge that of necessity there can be no such thing as a judgment or claim against an estate save what may follow from the filing of a statement in the county court and the procurement of a judgment thereon. It might happen that a suit begun against the decedent in his lifetime would be continued as against the administrator after his death, and result in a judgment against the estate which would be as conclusive as any judgment which might be obtained in the county court. What the law would be with reference to such a matter we do not determine. We deem it wise, however, to limit this decision respecting the necessity to file claims in the county court to cases like that at bar. There are numerous provisions in the statute respecting the estates of decedents, and we do not desire to extend our conclusions beyond the necessity of the present inquiry. The judgment was not warranted by the case made; it is irregular and bad in form, and the case must be reversed, and sent back for a new trial. Reversed.

(4 Idaho, 422)

SCHILLER v. SMALL et al.

PETERS v. SAME. (Supreme Court of Idaho. April 6, 1895.) DISMISSAL OF APPEAL-BOND.

1. An appeal taken after the statutory time has elapsed will be dismissed.

2. Where two appeals are taken,-one from the judgment, and the other from an order refusing a new trial,-and an undertaking is giv en "on the appeal," without designating which appeal, both will be dismissed.

Appeal from district court, Shoshone county; J. Holleman, Judge.

Appeals by Albert Small and another from a judgment and from an order denying motion for new trial. Dismissed.

Wm. H. Clagett, W. T. Stoll, and John R. McBride, for appellants. A. G. Kerns and W. W. Woods, for respondents.

HUSTON, J. These are appeals from the same judgment and order denying motion for new trial. A motion to dismiss in each case is made upon the grounds-First, that the appeal was not taken in time; second, that no undertaking on appeal has been filed.

The action was for a foreclosure of a mortgage. Decree was entered June 27, 1893. Notice of appeal was filed on June 29, 1894, and served on July 21, 1894. The appeal was not taken within the year prescribed by statute. The appeal was taken from both the judgment and the order denying motion for a new trial. The undertaking is conditioned for the payment of all damages and costs which may be awarded against appellants "on the appeal," without designating which appeal. This question has been so often and so recently decided by this court that it is strange we should be again called upon to repeat the decision. McCoy v. Oldham, 1 Idaho, 465; Mathison v. Leland, Id. 712; Eddy v. Van Ness, 2 Idaho, 93, 6 Pac. 115; Cronin v. Mining Co., 2 Idabo, 1146, 32 Pac. 53. Motion to dismiss allowed, with costs to respondents.

MORGAN, C. J., and SULLIVAN, J., con

cur.

(4 Idaho, 423)

ROSENBAUM et al. v. SMALL et al. (Supreme Court of Idaho. April 6, 1895.) Appeal by Albert Small and others from a judgment in favor of Isaac Rosenbaum and others. Dismissed.

Wm. H. Clagett, W. T. Stoll, and John R. McBride, for appellants. W. R. Stokes, for respondents.

HUSTON, J. This is an appeal from the same judgment and like order overruling motion for a new trial as the two preceding cases against the same defendants. Schiller v. Small, 40 Pac. 53; Peters v. Small, Id. The decree was entered June 27, 1893, and notice of appeal filed on June 29, 1894, and served on July 21, 1894. The appeal not having been taken within the time prescribed by statute, to wit, one year, this court has no jurisdiction to hear it. Appeal dismissed, with costs to respondents

MORGAN, C. J., and SULLIVAN, J., con

reason that the record fails to show that a continuance was had for two days, and not noted in the docket of the probate judge.

2. Held, under the evidence, that the plaintiff had neither the legal nor equitable title to the land in controversy.

3. Adverse possession of land cannot be considered established under any of the provisions of the Code, unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons, their predecessors and grantors, have paid all the taxes, state, county, or municipal. which have been levied and assessed upon such land according to law.

4. There being not a scintilla of evidence supporting plaintiff's claim, the cause should have been taken from the jury, and judgment entered for the defendant.

(Syllabus by the Court.)

Appeal from district court, Latah county; W. G. Piper, Judge.

Action in ejectment by Arthur Green against George C. Christie. Plaintiff had judgment, and defendant appeals. Reversed.

Forney, Smith & Moore, for appellant. James W. Reid, for respondent.

SULLIVAN, J. This is an action of ejectment, brought by the plaintiff, Arthur Green, against the defendant, George C. Christie, to recover the possession of certain lands in Latah county, and for damages. The cause was tried by the court with a jury, and a verdict rendered. in favor of the plaintiff for the possession of said land and $1,000 damages, and judgment was entered in accordance with said verdict. A motion for a new trial was made and denied. This appeal is from the judgment and the order denying the motion for a new trial.

It is conceded that the respondent, Green, had both the legal and equitable title to said land on November 29, 1879, on which date a transcript judgment from the probate court of Nez Perces county, wherein one Raymond Saux was plaintiff and Arthur Green, the plaintiff herein, was defendant, was filed and docketed in the office of the clerk of the district court in and for Nez Perces county; that an execution was issued thereon, and the land in question levied upon under said execution, and sold to one Bernard Lowenburg in satisfaction of said judgment. A sheriff's deed by virtue of said sale was executed to said Lowenburg for the premises in dispute on the 6th day of December, 1880. Whatever title the defendant, Christie, had to said land was obtained from said Lowenburg, and all the title Lowenburg had was procured through the sheriff's sale and deed aforesaid. All of the files and record entries of the probate court of Nez Perces county in said cause of Raymond Saux v. Arthur Green were introduced in evidence in the trial of the case at bar on behalf of defendant, Christie, which show that summons in said case in the probate court was issued on November 15, 1879, returnable in 10 days; that it was served on defendant on the date of issue. The record so introduced fails to show that anything