inaccuracy consists, or how far the entry may deviate from the judgment rendered. In this case, in correcting the erroneous entry so as to express its true judgment, the court simply exercised a power inherent in its constitution, and which it is its duty to exercise, provided there were no extrinsic reasons why it should not be exercised.

It is claimed that the delay, in the nature of laches, of the plaintiff in applying for the correction of his judgment, divested the court of its authority to make the amendment. We must disagree with counsel. The court's control of its records for the purpose of making them exact cannot be lost by mere delay in its exercise, although perhaps reasons might exist why it would be its duty to refuse to exercise it. It is incumbent upon the party, in whose favor a judgment is rendered, to see that it is properly entered; and if, during the period of an undue delay in causing an erroneous entry to be corrected, rights have become vested under it, or substantial rights of the adverse party have been lost, justice may require the refusal of the amendment. See Rogers v. Rogers, 1 Paige, 187.

In this case, if, between the time of the original entry and that of the correction, the partnership and Purviance had both become insolvent, so that a burden was cast upon Breene alone, which, if the plaintiff had been diligent in causing the proper record to be made, would have been borne by the partnership, or divided with Purviance, a different question would be presented; but nothing of this kind appears. It is claimed, however, that by reason of the delay Breene lost his statutory right to appeal; that the judgment could not be appealed from at first because there was no record of it upon which to base an appeal; and that when it was finally made a matter of record, the entry being nunc pro tunc, and relating back to the first date, it was too late to appeal. Whatever force there might otherwise be in this argument, there is one answer to it, which disposes of it so far as the case before us is concerned, and that is that the amendment was not resisted. The appellant does not claim that it was,

and from the silence of the record we must presume that it was made with Breene's acquiescence. He is therefore not in a position to urge this objection here.

Apparently counsel have misinterpreted our decision in Breene v. Booth, supra; and it seems also to have been misapprehended in another quarter where there is less excuse. for the misapprehension. The question of the court's control over its own records was not in that case. The question was whether after an appeal had been perfected from the judgment as it was recorded, the filing of the supplemental transcript authorized us to review the judgment as it was rendered, and we held that it did not. Authority is abundant that corrections by the trial court, after appeal, of clerical errors in its records, may be brought into the appellate court, and there treated as part of the record of the case; but to warrant this, where the correction goes to the judg ment, the character and legal effect of the judgment upon the record must not be so changed that it cannot be considered as embraced in the appeal. We have no authority to review any judgment unless it is here by appeal or writ of error. Certain proceedings preliminary to an appeal are prescribed, which are jurisdictional. An appeal from the judgment rendered must be prayed within a specified time after its rendition, and an appeal bond must be given conditioned for the payment of that judgment if it shall be affirmed, and for the due prosecution of the appeal. Without compliance with these requirements there is no appeal. The judgment against the copartnership was not appealed from. The appeal was from the apparent judgment which the record showed against Breene alone, and which, until corrected, must be taken to be the judgment of the court. It was from this that the appeal was prayed, and the appeal bond recited this judgment. A judgment against a copartnership, and a judgment against an individual, are materially different. The manner of their enforcement is different, and the rights of parties under them are different-so essentially different that a judgment given against an individual partner, when it

should be against the firm, is erroneous, and will be reversed for that sole reason. Dessauer v. Koppin, 3 Colo. App. 115, and cases cited. An appeal by an individual from a judgment against him alone is not, and cannot be, tortured into an appeal from a judgment against a copartnership.

In illustration of our position, we will suppose that at the trial it was found that Breene and Purviance were not partners; and, the indebtedness having been contracted by Purviance, judgment was rendered only against him, but by a misunderstanding of the clerk it was entered against Breene, and not against Purviance. Breene, finding this judgment upon the record, appealed from it. After he had perfected his appeal, the plaintiff in the proper proceeding for the purpose, had the record amended so as to show the true judg ment rendered, namely, a judgment against Purviance only, and filed a supplemental transcript of the later proceeding in this court, asking us to pass upon the judgment as amended. By what authority could we have considered this transcript as part of the record of Breene's appeal? From what source would we derive jurisdiction to review a judgment called to our attention in this way, and not before us either by appeal or writ of error? It is not in the law that such authority can be found, and to assume jurisdiction under those conditions would be usurpation. The case supposed and the real case do not differ in principle. While there may be no limit to the power of a court to make proper corrections of its record, a judgment as originally entered may be so radically changed that it cannot be considered as the judgment appealed from, and must be brought here by an independent proceeding before we have authority to review it; and until the amended judgment is brought to our attention in such way that we can judicially notice it, we must assume the record from which the appeal is taken to be the only judgment in the

case.

The foregoing is a digression, for which our justification is a construction, deemed by us unwarranted, which seems to have been placed upon our former decision.

VOL. VI-10

There is nothing in this record which would authorize us to reverse the judgment, and it will therefore be affirmed.

Affirmed.

THE GLOBE SMELTING And Refining COMPANY V.

1. APPEAL.

No appeal can be taken from a verdict before judgment. 2. SAME JUDGMENT NUNC PRO TUNC.

SPANN.

Where, after disposition of a motion for a new trial, judgment was entered upon the verdict as of the day of trial, a prayer for appeal made on the day when judgment was ordered is in apt time. A party cannot be deprived of his right of appeal by a nunc pro tune entry.

3. EMPLOYER AND EMPLOYEE-NEGLIGENCE.

No damages can be recovered of an employer by an employee unless the fact of negligence on the part of the employer, as the proximate cause of the injury, is established. If the appliances in use were defective, and the fact known to those in charge, and there was a refusal to make them safe, and the employee is injured in consequence of such defect, he can recover his damages; otherwise not. 4. EVIDENCE-IMPEACHMENT.

Where the plaintiff, in an action for damages, has made profert of his hands and scars thereon as the result of the injury complained of, it is competent to show that on several occasions previous to the last injury he made proof to an accident insurance company on like injuries, for the purpose of showing that the scars exhibited were not the result of that accident, and as affecting his credibility as a witness.

5. APPELLATE PRACTICE-FINDINGS OF FACT.

The facts and circumstances of this case are such as to take it out of the general rule that the court will not interfere with the finding of facts by the jury where the evidence is contradictory.

Error to the County Court of Arapahoe County.

DEFENDANT in error brought suit against the plaintiff before a justice of the peace. A trial was had, and from the judgment an appeal was taken to the county court, where a trial was had resulting in a judgment against the defendant for $300.

Defendant was engaged in smelting ores. Plaintiff was by it employed as a furnace man and had charge of the fur

nace.

Plaintiff alleged that on the 13th day of April, 1893, he received injuries by burning, through the misconstruction of the furnace appliances and negligence of the defendant in failing to remedy the alleged defects. It appears that the. molten metal from the furnace discharged mechanically and automatically into a receptacle called a "matte separator." The matte, being heavier than the slag, remained at the bottom of the separator. When it was filled, the slag passed off mechanically at or near the top of the separator through a spout. The matte contained the valuable metal from the ores. It was the duty of the furnace man to draw off the matte as often as it became necessary, through an orifice in the end of the separator or receptacle, which was of iron lined with fire brick, and also at the orifice, protected by a fire brick upon the outside fitted into the aperture. In the iron frame the opening was oval, oblong, six or seven inches long perpendicularly, and an inch or more in width. There was an adjustable spout upon the outside through which the matte discharged. The opening in the iron case was made the length designated in order to allow the spout to be placed higher or lower, as demanded by circumstances. The orifice for the discharge of the molten metal from the interior was much smaller than that in the iron case,-was made by drilling a hole through the fire brick lining at a point corresponding with the spout. The discharge was regulated by and dependent upon the inner orifice, and not upon the one through the iron. In discharging molten material the inner orifice was opened by thrusting in a small steel bar, and closed by a mass of wet moulded clay upon the end of a bar being pushed into the orifice.

The claim of the plaintiff was that on the 13th day of April, 1893, while employed in charge of the furnace, he was burnt and injured by molten metal escaping through the orifice, spouted over his person, by which he was burned upon