
    [No. 3400.]
    California Milling and Mining Co., Limited, v. Rocky Mountain National Bank et al.
    Appeal entered as a writ of error on the authority of Western Lumber & Pole Co. v. City of Golden, ante.
    
      Appeal from Gilpin District Court. Hon. Flor Ashbaugh, Judge.
    Mr. Hénry J. Hersey, Mr. Arthur Ponsford, Mr. William E. Hutton, Messrs. Dayton & Deni- ' ous, for appellants.
    Mr. H. A. Hicks, Mr. Charles W. Waterman, for appellees.
   Cunningham, Judge.

Appellants have filed a motion to remand this cause to the supreme court, and appellees have filed a motion to dismiss the appeal. The judgment‘in the case does not appear to relate to a franchise or to a freehold, and does not amount, exclusive of costs, to the sum of $100.00, nor is the construction of any provision of the state or federal constitution necessary to the determination of the cause. Therefore, the motion of appellants to remand the cause must be denied, and for the same reason the motion of appellees to dismiss the appeal should be granted.

The principal contention of the parties on brief and on oral argument pertains to the right of this court to re-enter the case as pending on error. We have just decided, in the case of The Western Lumber and Pole Company v. City of Golden, case No. 3386, that this court has the authority, and that it is its duty, under facts and conditions similar to those presented by the record in the instant case, to order the case re-entered as pending on error.

Decided May 13, A. D. 1912.

Rehearing denied June 10, A. D. 1912.

The motion of the appellants to remand the case is denied. The motion of the appellees to dismiss the appeal is granted, and on the authority of the Western Lumber and Pole Company case, supra, and for the reasons assigned in the opinion handed down in that case, it is ordered that this case be re-entered as pending on error.

Hublbut, Judge, dissents from so much of the opinion as pertains to the right of this court to reenter the case as pending on error.  