apparently led them to curtail the credit which had been extended to the charcoal burners, and McAllister, who wanted the product to fill his contracts, undertook with the plaintiffs to guarantee the payment of the bills which the Pike Brothers might contract for the months of September, October, November and December, 1887, to an amount not exceeding eight hundred dollars for each month, conditioned that he should receive from the Pike Brothers, under his dealings with them, that amount of coal,-otherwise he was only to pay to the plaintiffs the value of what he might purchase. The contract was carried out and complied with on both sides for the months of September, October and November, and the present suit was brought by the plaintiffs to recover the eight hundred dollars due for the supplies furnished the Pikes for December. The answer denied the contract as set up, and contained an affirmative plea, that prior to the institution of the present action the plaintiffs had sued Pike Brothers for the amount of the account, as it stood between them, including the eight hundred dollars claimed in the present suit. The plea averred that he had paid a judgment of four hundred and odd dollars, rendered against him on his answer to a process of garnishment issued in the suit of the Gilletts against the Pikes, and thereupon had been discharged as garnishee. A demurrer was interposed to this plea, substantially attacking it because that action and the present were so far consistent and concurrent as to permit the prosecution of both to judgment, with the right necessarily to only one satisfaction of the claim. This is only referred to, because the question is discussed upon the present appeal as one still involved in the controversy which the court is called upon to decide. We do not so view it. A demurrer to this affirmative defense was overruled, and the plaintiffs replied to it, leaving only to them the right to preserve the question in the record by taking proper objections to the introduction of the testimony, and preserving sufficient exceptions in the record. Neither the transcript nor the abstract shows an objection which necessitates the expression

of an opinion upon this proposition. If a proper objection had been taken so as to save the question, it would be entirely unavailable for the purposes of reversal in the view which the court takes of the case. If the testimony were entirely excluded from the record, the result would be the same, and where a judgment is unaffected by incompetent testimony its admission will not serve as a basis upon which to assign error.

The plaintiffs were not entitled to recover. The contract was in terms dependent upon the purchase and delivery of coal, for McAllister expressly contracted that his liability should be measured by the value and quantity of coal that he might purchase and receive from the Pikes. In order then for the plaintiffs to recover it was incumbent upon them to show, by competent proof, that the Pikes had delivered to McAllister, or to others by his order, coal enough to render him liable to the extent of their claim. Evidence was offered to show the shipment of divers cars of coal from Brown's Canon Station by the Pike Brothers, to sundry smelters in Leadville. The proof was not completed by testimony which served to connect McAllister with these shipments, and it leaves the whole question of McAllister's liability thereunder to inference. The averments on this branch of the case were not sustained by sufficient or satisfactory evidence. The court evidently so concluded and rendered judgment accordingly. Since the finding is so fully sustained by the evidence, this court, even though they had reached an adverse conclusion, would not be justified in disturbing the judgment. Kinney v. Wood, 10 Colo. 270.

There is no error in the record and the judgment will be affirmed.

Affirmed.

GRANT M. SPRAGUE ET AL., APPELLANTS, V. BRADFORD H. LOCKE ET AL., APPELLEES.

1. A DECREE AWARDING RESTITUTION IS A FINAL JUDGMENT.-In an action founded on a complaint for injunction and affirmative relief under the civil code, wherein it is alleged that the plaintiffs were ousted by the defendants, by force and violence from the possession of mining property, and its possession ever since withheld from them by fire-arms and threats of violence, a decree ordering restitution of the property to the plaintiffs is a final judgment from which an appeal will lie.

2. DECREE NOT INVALIDATED BY UNNECESSARY STATEMENTS OF COURT. -Where it appears from the record that a decree for affirmative relief was based on the allegations of the complaint and upon the evidence applicable to the issue joined thereon, the decree reciting that the court found all the material averments of the complaint to be true, it cannot be disturbed by reason of any statements made by the judge at time of pronouncing it on subjects outside those upon the consideration of which the decree was based.

Appeal frow District Court of Gilpin County.

Mr. J. McD. LIVESAY, for appellants.

Messrs. TELLER & ORAHOOD and Mr. E. W. HURLBUT, for appellees.

REED, J. In 1880, parties acting under the name of the Decatur Silver Mining Company were in the possession of a certain lode in Russell Mining District, called the "Rover" Lode, and the surface ground appertaining to it, upon which they erected a shaft house, in which they placed steam hoisting and pumping machinery, which was used for working and mining the property. Work was prosecuted by the claimants from time to time until April or May, 1887, after which no actual possession was had by them until the present controversy arose, about the middle of March, 1889. In June, 1887, appellees entered upon the property, worked

and occupied it, (including the shaft house,) made application to enter it under the laws of congress, and on March 15, 1888, made the entry and secured the receiver's receipt at the local land office, remained in possession and prosecuted the working of the mine until in January, 1889, when work was suspended and the shaft house fastened up. The property remained in this condition until about the middle of March, when appellants, by force or otherwise, entered the shaft house, took and retained possession of it from appellees, who were refused admittance by appellant, Engle, who maintained his possession with fire arms.

This action was brought by appellees to regain the possession of the shaft house, under sec. 159 of the Civil Code, page 146, Sess. Laws of 1887, as follows:

"The several district courts of the state, or any judge thereof, shall have, in addition to the power already possessed, power to issue writs of injunction for affirmative relief, having the force and effect of a writ of restitution, restoring any person or persons to the possession of any mining property or premises from which he or they may have been ousted by fraud, force or violence, or from which he or they are kept out of possession by threats, or by words or actions which have a natural tendency to excite fear or apprehension. of danger, or whenever such possession was taken from him or them by entry of the adverse party on Sunday or legal holiday, or while the party in possession was temporarily absent therefrom; the granting of such writ to extend only to the right of possession under the facts of the case in respect to the manner in which the possession was obtained, leaving the parties to their legal rights on all other questions as though no such writ had been issued."

The portion of the complaint necessary to be considered is the following:

"Said defendants, by force and violence, did enter into and upon said property, and did forcibly break and remove the locks and fastenings from the doors and windows of said building, and by force and violence did enter into the pos

session thereof, and ever since and now do with force and violence withhold possession thereof from the plaintiffs. That plaintiffs, before the commencement of this action, have demanded possession of said property from said defendants, but they have refused and still refuse to deliver up the possession thereof. That the plaintiffs have been and are now kept out of the possession of said property by threats made against them by defendants, and by words and actions of said defendants which have a natural tendency to and do excite fear and apprehension of danger.

66 That said defendants have declared their intention to hold possession of said premises by force and violence and at all hazards, and have ordered plaintiffs away from the same, and threaten them with personal violence if they come upon or about said premises."

An answer was filed putting in issue the allegations in the complaint a large amount of testimony taken. There is no serious controversy in regard to the facts.

On the 22d day of May, 1889, a decree was entered in favor of appellees, the court having found, "that all the material allegations in plaintiff's complaint are true and fully proven, and that at the time alleged in said complaint the plaintiffs were in peaceable and quiet possession of the premises in the said complaint described, and that afterwards at the time in said complaint alleged the defendants wrongfully and unlawfully entered into the possession thereof and ousted the plaintiffs therefrom, and have ever since forcibly, unlawfully and wrongfully withheld the possession thereof from said plaintiffs; that according to law and equity the said plaintiffs are of right entitled to be reinstated in the possession thereof."

The first question presented in argument is, whether under the statute and civil code the judgment was final, and one from which an appeal would lie. We think the case was appealable under sec. 388, Civil Code. The only relief asked was a decree of restitution; the only question to be determined, the manner in which possession was obtained and held. With the decree ordering restitution and the