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superintendent of the company; that the commissioners appeared by counsel in the district and moved to dismiss the appeal, on the ground that no appeal lies from the order of the board of equalization, and that, if it does lie in this case, that James H. Van Camp is not authorized or qualified by law to take such appeal, which motion was denied by the court. Such proceedings were afterwards lad in the district court as resulted in a judgment, rendered June 17, 1882, modifying the decision of the board of commissioners, and firing the value of the mill and appartenances at $35,000, (as previously ordered by them,) and of the bullion at $170,000, and requiring the board of commissioners, the county auditor, and the assessor and collector of taxes to proceed, and to adjust and collect the proper taxes upon such valuation, in manner and form, now for then, as if the appeal to the district court had not been taken. It was further ordered that a copy of the judgment be served upon the board of commissioners, the county auditor, the assessor, and tax collector of the county, and upon the General Custer Mining Company or its attorney.

On the fourteenth day of September, 1882, the General Custer Mining Company filed in the office of the clerk of the district court, and served, a notice of appeal from said judgment to this court, and on the next day gave an undertaking on said appeal, and on the sixteenth day of November, 1883, the said company sued out, and caused to be issued from this court, a writ of error to said district court. The respondent in this appeal and the defendant in error, James H. Van Camp, now moves to dismiss both the appeal and the writ of error,the former on the ground that no appeal is allowed by law in the cause, and the latter because the General Custer Mining Company is not a party to the record or judgment in the district court; that it does not appear from the record that the commissioners of Custer county authorized or consented to the suing out of the writ; that it does not appear from the writ of error herein that the board of com. missioners or the General Custer Mining Company are injured or prejudiced by the judgment of the district court; that the said company has no standing in this court, because it does not appear by the record that it bas paid or tendered the tax on its property upon the valuation thereof as fixed by the board of commissioners; and on the further ground that there is no statement of the case or bill of exceptions in the transcript in support of the writ of error. At the last term of this court, in the case of Rupert v. Com'rs Alturas Co., ante, 718, it was decided that no appeal would lie to this court from a judg. ment of the district court rendered upon an appeal from an order of a board of county commissioners, because such cases, although somewhat anomalous in character, do not partake of the nature of suits in chancery, which can be transferred from one court to another in that manner, but were proceedings at law, which, in the absence of any

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statute conferring the right of appeal, were to be reviewed by writ of error, and that there is no statute of this territory authorizing or providing for an appeal to this court in such cases. That decision was rendered on the eleventh day of September, 1882, about the time the notice of appeal was filed in the district court from its judgment in this case; from which fact, and the subsequent suing out of the writ of error, it is reasonable to presume that the General Custer Mining Company abandoned its appeal, and concluded to rely upon its writ of error instead. Indeed, the appeal is not now insisted upon by counsel for the appellant. Upon the authority of the case above referred to the appeal is dismissed.

The objections made by the moving party to the writ of error, and to the right of the plaintiff in error to be heard thereon, will now be considered and briefly discussed; and—First, is the General Custer Mining Company such a party to the record, proceedings, and judgment of the district court as is entitled to a writ of error to review the same? The rule concerning writs of error at common law (and we have not now any statute extending or changing that rule) unquestionably is that no one can bring error unless he is a party or privy to the record, or is prejudiced by the judgment, and the rule seems to be inflexible,-Bac. Abr. “Error;" Connor v. Peugh's Lessee, 18 How. (U. S.) 394;—and, as proceedings in error are in the nature of new actions, this rule probably had its origin in the same general principle that governs in relation to the parties in personal actions, that the action must be brought in the name of the party whose le-. gal right has been affected.

The origin and foundation of the proceedings in this cause was the complaint made by the General Custer Mining Company, through its superintendent and agent, to the board of equalization, that its property was assessed too high. In that initiatory proceeding or step the company stood in the relation of complainant or plaintiff. Upon such complaint, and the hearing had thereunder, they procured an order favorable to their interest,—a reduction in the assessment, and & consequent reduction in the amount of taxes to be pai

To the order and decision of the board they had a vested right, subject only to a reversal or modification, by competent authority, in the mode prescribed by law; and although the proceedings before the board neither had or were required to have a name or title, the General Custer Mining Company were unquestionably interested in such proceedings, and in the order obtained therein. The statute (Rev. Laws, p. 529, § 25) authorizes appeals to be taken from orders of the board of county commissioners to the district court, and the appeal in this case was taken under that statute; but an appeal, strictly speaking, is not the commencement of a new action or proceeding, but a continuation of the same case, action, or proceeding, being only a transfer from one court, tribunal, or body to another for final trial and judgment. Hence, the policy and propriety of the statute, which requires the no


tice of appeal in such cases to be served on "any person having a beneficial interest in the order or decision appealed from,” in order that they may have an opportunity to defend their claim, and maintain the advantages of the order, if they are able to do so. They are still parties to the proceeding, and continue so to be until their rights in the matter are finally adjudicated, whether they appear in the appellate tribunal or not.

Much stress was laid in the argument upon the fact that the name of the General Custer Mining Company does not appear in the title of the original notice of appeal or other papers, or in the judgment of the district court; and it is urged that therefore they are not a party to the record or judgment. The papers, proceeding, and judg. ment are, it is true, entitled J. H. Van Camp v. The Board of County Commissioners of Custer County, but the plaintiff in error is not responsible for that name or title, nor do I know of any law requiring the papers, proceeding, and judgment to be so entitled. Van Camp's Appeal would, perhaps, be the more appropriate title. The title or name by which an action or proceeding is called certainly cannot change its character or divest interests acquired before the christening. They remain the same. It is provided by section 711 of our Code of Procedure that "an affidavit, notice, or other paper without the title to the action or proceeding in which it is made, or with a defective title, is as valid and effectual for any purpose as if duly entitled, if it intelligibly refer to such action or proceeding. We think that section applicable to the question under consideration, and even without it that it would be the duty of the court to look beyond the mere title to ascertain who are interested and affected parties. As to the judgment, we think it cannot be seriously contended or claimed that the direction and order therein contained, that the several revenue officers of the county proceed and collect the taxes upon the increased valuation of the property, imposes no liability or obligation upon the General Custer Mining Company to pay taxes thereon. As long as laws exist for enforcing the collection of taxes, it must be evident to all that the contrary is the case. We conclude, therefore, upon this question, that the General Custer Mining Company is a party to the record, proceedings, and judgment, and that such judgment was and is prejudicial to its interests, in the sense that it increased its liability to the public.

There are no pleadings in proceedings of this character in which the fact of payment or tender of the taxes upon the valuation of the property, as fixed by the board, could be alleged, and it is difficult for us to understand how that fact could be made to appear by the record. The bond given as a supersedeas is theoretically and presumptively, at least, sufficient to save the defendant in error and the public harmless from all damages they may suffer by reason of the delay in the payment of the taxes, if they have not been paid. This is not a case in which it is necessary for the record to show payment or tender in order to give the party standing in court. It is not, in the opinion of this court, necessary, to entitle a party to a writ of error, that there should be either bill of exceptions or statement; the object of these is to bring into and make of record what was not so. If errors appear upon the face of the judgment roll, they can be shown and taken advantage of upon the hearing.

The motion to dismiss the writ of error is denied.

BUCK, J., concurred.

MORGAN, C. J., did not sit in this case.



Filed February 4, 1884.

There need not be a finding upon questions as to which no issue is raised. We cannot anticipate the violation by a court of an injunction order which it has recognized.

Department 2.

S. B. Davidson and Jarboe & Harrison, for respondent.

R. H. Taylor, Crittenton Thornton, and F. H. Merzbach, for appellants.

BY THE COURT. It is urged here that there is no finding as to the manner in which plaintiff Allenberg got possession of the 30,000 shares of Altoona stock. We have examined the findings, and find all the issues in relation to this stock found upon. There is no issue as to the manner in which Allenberg got possession of the stock. There are averments in the answer that on the fifth day of May, 1879, defendant filed his complaint in another court in an action against Allenberg and the Goldsteins, in which complaint certain allegations were made in regard to the manner in which Allenberg got possession of the stock referred to. The issue raised by these averments, so far as material, was found upon. We see no error in the decree. The court recognizes in the decree the pendency of the injunction order restraining the sale of the stocks referred to above, and forbears to make in the decree any order for their sale. It may never become necessary to make any order for their sale, as the other property ordered by the decree to be sold may bring enough to pay the indebtedness secured. If, on the sale of the property last mentioned, there should be a deficiency, the court directs in its findings and decree that the plaintiff may, upon notice to the defendant, apply to the court for a writ or order directing the sale of the stock. When such application is made, the defendant may set up the injunction order restraining the sale, if it is then in existence; and we cannot anticipate that the court will then make an order directing the sale of the stock, unless it shall appear that the injunction order has been dissolved.

The judgment is affirmed.


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