new trial would be left still pending in the court below. That court may grant or deny the motion for a new trial, or dismiss the application for want of prosecution. But the order of August 21, 1882, was manifestly erroneous. While it was not of itself an order denying the defendants' motion for a new trial, since that motion had already been granted, it operated, if valid, to vacate the former order, and thus to give plaintiff further opportunity to oppose the defendants' motion for a new trial, or the court an opportunity to make a new order without reference to that matter. The statute authorizes but one motion for a new trial, and makes the ruling thereon final, so far as the superior court is concerned. For aught that appears in the transcript, the motion to set aside the order granting a new trial was made ex parte, and upon the same papers as those used on the motion for a new trial. If the practice of moving to set aside an order granting or denying a new trial should be allowed, "the proceedings after judgment would be interminable, for the last order could be vacated upon motion of the losing party, and so ad infinitum. There must be some point where litigation in the lower court terminates, and the losing party is turned over to the appellate court for redress." NILES, J., in Coombs v. Hibberd, 43 Cal. 453. In the case just cited, an order vacating an order refusing a new trial was reversed. The Code of Civil Procedure provides that an ex parte order may be set aside, and without notice. The court below was justified in making the order of December 27th, setting aside the order (improvidently entered) vacating the order granting a new trial, and in entering the order denying plaintiff's motion to set aside the order of December 27th. Orders appealed from affirmed. We concur: Ross, J.; MCKEE, J. SUPREME COURT OF COLORADO. MARTIN v. MCLAUGHLIN. Filed February 6, 1885. 1. PRACTICE FAILURE TO ANSWER IN COUNTY COURT APPEAL TO DISTRICT COURT-ANSWER WITHOUT PREVIOUS LEAVE OF COURT-LAW OF COLORADO. By Gen. St. § 500, the defendant, upon appeal from a county to a district court, can, as a matter of right, without first asking leave of the court, file his answer, notwithstanding his having made a default in answering in the county court. 2. COMMON CARRIER-SALE OF GOODS TO SATISFY CARRIAGE CHARGES-INSTRUCTION-KNOWLEDGE BY CARRIER OF WHO CONSIGNOR WAS-NOTICE-LAW OF COLORADO. In an action for damages against a common carrier for having unwarrantably sold goods consigned through him, in order to satisfy freight charges, an instruction asked of the court by plaintiff in his behalf is defective if it ignores the question as to the carrier's knowledge of who was the consignor of the goods, as affecting the matter of notice under the statute of Colorado. Pro Error to district court, Park county. Motion for new trial on ground that the verdict was contrary to the instructions of the court. ceedings reviewed and motion denied. D. J. Haynes and Matt. Adams, for plaintiff in error. STONE, J. Plaintiff in error was the plaintiff below. The plaintiff's replication to the defendant's answer was stricken out of the pleadings on motion of defendant therefor, but since this motion was confessed by plaintiff's attorney the ruling of the court therein is not questioned. The first of the assigned errors to be noticed goes to the denial of the court of a motion of the plaintiff to strike from the pleadings the defendant's answer to the complaint. The ground of this motion was that said answer was filed without leave of the court, pending a default taken and entered for failure to answer under a rule therefor. The circumstances were these: The case was originally brought in the county court of Lake county. A demurrer to the com plaint was sustained, and from the ruling and judgment thereon plaintiff appealed to the supreme court, wherein said judgment was reversed and the case remanded for trial. Martin v. McLaughlin, 5 Colo. 387. The county court, upon the mandate, entered a rule that defendant answer in 10 days, and no answer having been filed within that time, the court, upon motion of plaintiff, entered a default and rendered judgment against defendant for the amount claimed by plaintiff, whereupon afterwards the defendant appealed the case to the district court of Lake county, and filed therein his answer to the complaint in the case. A change of venue was taken to Park county, for the reason that the original attorney for defendant had become judge of the Lake county district court, and after said change of venue a continuance of the case was had on the motion of plaintiff. When the case was called for trial, and after the jury had been called, the motion in question, to strike out the defendant's answer, was made by plaintiff, on the ground that since the defendant had been put in default for failure to answer under the rule in the county court, he could only answer by leave of court thereafter, and the answer having been filed without such leave asked and obtained, the answer was improperly on file in the case. The court denied this motion on the ground that under the circumstances it came too late, and could not be interposed after the case had gone to trial. The ruling of the court in denial of this motion was not erroneous, and for the additional reason that the statute providing for appeals from county to district courts expressly declares that "the proceedings in such case in the appellate court shall be de novo," and that "the defendant, where judgment has been rendered by default, shall have a right to plead any and all defenses which he might have pleaded had the cause been originally brought in the district court." Gen. St. § 500. As this statute gave the defendant a right to file his answer in this case in the district court, notwithstanding his previous default in the county court, it was not necessary to ask and obtain leave of the court therefor. The plaintiff, in his complaint, averred, in substance, First. That the defei dant was a common carrier of goods for hire between the town of Grant, the then terminus of the Denver & South Park Railroad, and the town of Leadville. Second. That on the twenty-first of December, 1878, the said railroad, at said named terminus, delivered to the defendant a certain lot of goods, which are particularly described, consisting of dressed poultry, fish, and oysters, of the value of $329.44, the property of the plaintiff, which goods the defendant received, to be by him safely carried to the town of Leadville, and to be delivered to one McCarter, the consignee, for a reasonable reward to be paid by said McCarter; "the said goods having been shipped to him as purchaser thereof." Third. That the defendant did not safely carry and deliver the goods; that he carried the same to said town of Leadville and tendered them to said consignee, who refused to receive or accept the same or any part thereof; and that thereupon the defendant sold said goods and appropriated the proceeds to his own use, without having first notified the owner and consignor, the plaintiff, that the freight on said goods was unpaid, although he well knew said consignor, and where he lived; and without having given or published the required statutory notice of such sale. Fourth. That the defendant so sold and disposed of said goods and appropriated the proceeds as aforesaid without first having given the owner and consignor, or the consignee thereof, his or their agent, notice of his intent so to do, 24 hours before said sale was to have taken place, and that said consignee did live at the place or town where said goods were sold; and that the defendant did not sell said goods or any part thereof at public auction to the highest and best bidder, and did not sell the same or any part thereof for the best price that could reasonably have been obtained in the market where they were sold: and that said defendant did not dispose of the proceeds of said sale as provided for in section 1865 of the General Laws of the state of Colorado. Wherefore, plaintiff demands judgment, etc. The defendant in his answer admits that he was a common carrier, and received the goods at the time and place averred, but does not know whether plaintiff was at that time the owner of said goods or not; denies all the other allegations of the complaint; and, further answering, sets up the following as an affirmative defense, to-wit: "That prior to the delivery of the goods to him, as aforesaid, he contracted with one Joseph McCarter, the consignee and purchaser of said goods, to receive said goods from said railroad company at a station known as Grant, at the end of said railroad company's track, and to safely carry and deliver said goods to the said Joseph McCarter, at the town of Leadville, in the county of Lake and state of Colorado, for a certain reward previously agreed upon to be paid by said McCarter; that under and by virtue of said contract he did receive, from the said railroad company, at said Grant station, after first paying all charges thereon, the said goods; that on the twenty-fourth day of December, A. D. 1878, he did safely carry said goods to the said town of Leadville, and tendered and offered to deliver them, and each and all of them, to the said consignee, Joseph McCarter; that the said McCarter did absolutely refuse to receive or accept said goods, or any part thereof; that said goods, and each and all of them, did consist of goods which would perish or become greatly damaged by delay in disposing of the same; that the freight on said goods was unpaid; that the consignor of said goods was not known to this defendant; that the defendant thereupon notified the said consignee personally that he would, in twenty-four hours from the time of said notice, sell all of the said goods at private sale, for the best price that the same would bring, or that could reasonably be obtained therefor, in the said town of Leadville; that the defendant did, twenty-four hours after such notice, sell and dispose of the same at private sale, for the best price that could reasonably have been obtained therefor in the market where they were sold, and at the time they were sold; and that, after paying the freight and all charges thereon, no surplus was left. Wherefore, defendant prays that he may be dismissed," etc. Upon the striking out of the replication to this answer the matter therein pleaded as a defense stood admitted by the plaintiff, and we cannot see that he had much of his case left to stand upon. Upon the trial the defendant testified that the contract for freighting the goods from the end of the railroad to Leadville was made between McCarter, the consignee, and himself, and the price therefor agreed upon; that he, the defendant, paid the railroad charges when he received the goods; that he did not know who was the consignor or shipper; that the bill he got did not show who was such consignor; that he learned the fact first when the plaintiff came to Leadville a few days after; that he sold the goods for the freight and charges; and that he received no more for them than was sufficient to cover the amount of freight and charges. Harry, one of the drivers, testified to the refusal of McCarter to receive the goods when delivered; that the weather was changeable, and the goods were liable to be frozen any day, and thaw and be spoiled the next; that he did not at the time know who the shipper was. Holliday, to whom the goods were sold, testified that the weather was cold at that time, and that if it had remained cold, or the goods had been kept in a cold place, they would have kept a month or so; that he noticed "Martin & Company," on a case of oysters; that after McCarter refused to receive the goods, the driver brought them to the store of witness and unloaded them; that defendant was in the habit of unloading goods and trunks there, and witness held them and collected charges for defendant; that these goods were unloaded there the evening of the twenty-fourth of December; that he (Holliday) telegraphed plaintiff that a lot of goods shipped to McCarter had been refused by the latter, and asking what to do; that he got a reply in a day or two to pay the charges and hold the goods for plaintiff; that he (the witness) bought the goods of the defendant, and paid him for them the amount of the freight and charges claimed thereon; that the plaintiff came up to Leadville a day or two afterwards. The plaintiff Martin testified that he shipped the goods to McCarter in care of McLaughlin, the defendant; that they were marked with McCarter's name, and that the stencil of "Martin & Company" was on some of them; that he had no partner; that the "company" was merely nominal; that he received a telegram on the 25th (Christmas) from Holliday & Hamrick, stating that McCarter refused to receive the goods, and that he (the plaintiff) answered the telegram, directing Holliday & Hamrick to receive the goods, pay charges, and keep them, subject to the order of plaintiff; that he afterwards went to Leadville, where he found that the goods had been bought by Holliday & Hamrick. There was no offer on the part of the plaintiff to show that he repaid the charges and took the goods, or that he offered to do so, or that he tried to sell for a better price, or that the full price was not obtained on the sale by defendant, or that the charges were excessive; nor was the allegation of defendant, in his answer and testimony, that he notified the consignee of the intended sale 24 hours before the same, contradicted, nor that the sale was made in accordance with such notice. Neither is there any testimony in the record to show that the plaintiff, at the time he went to Leadville to look after the matter, made any complaint to defendant, or any one else, that the goods had been disposed of as they had heen, or of the manner of their disposal by defendant. We think the testimony supports the averments of the answer in defense of the action, that the sale of the goods as perishable property by the defendant for the freight and charges due him thereon was authorized by the statute. See Gen. St. § 3437. The instructions given by the court to the jury were correct, and embodied all the law applicable to the case under the statute above referred to. These instructions were as follows, to-wit. "First. If you find from the evidence, by a fair preponderance thereof, that plaintiff consigned and shipped from Denver to one McCarter, in Leadville, certain goods via the Denver, South Park & Pacific Railroad, over the defendant's line, defendant being then a common carrier, and that said McCarter, the consignee thereof, refused to receive and pay the freight thereon; and if you further find from the evidence that one Holliday notified the plaintiff by telegraph, or otherwise, and received instructions from plaintiff to pay charges and hold the goods for him; and if you further find that said Holliday |