its benefits. It can not therefore be heard in this action to say that the decree of the district court of Boulder county is not binding upon it. * * * 22 Colo. 115, 43 Pac. 540." Con. Home S. D. & R. Co. v. New Loveland & G. I. & L. Co., 27 Colo. 521-522-523, 62 Pac. 364; Handy D. Co. v. South Side D. Co., et al., 26 Colo. 333, 58 Pac. 30.

b. Appropriation in Colorado for use in New Mexico.

Syl. "The courts of this state have no jurisdiction to award priorities to the use of water to a ditch intended to water lands outside the state, although the ditch has its headgate within the state." Lamson, et al., v. Vailes, et al., 27 Colo. 201, 61 Pac. 231. See Willey et al. v. Decker, 11 Wyo. 496, 73 Pac. 210.

C. Effect of judgment without jurisdiction of person-
Meritorious defense.

"A judgment rendered without obtaining jurisdiction of the person may be impeached by a proceeding in equity, or in an answer to an action seeking to enforce the judgment where equitable defenses are allowable, as in this state, although in the complaint there is no allegation of merits." Crippen, Trustee, v. The X. Y. I. D. Co., 32 Colo. 447-460, 76 Pac. 794; G. W. M. Co. v. W. of A. M. Co., 12 Colo, 46, 60; Du Bois v. Clark, 12 Colo. App. 220-233, 55 Pac. 750.

d. Of district cocurt.

The statute designating exclusive jurisdiction in the district court does not "enlarge or limit the constitutional jurisdiction of the district court in this respect." Kerr v. Burns, 42 Colo. 285-289, 93 Pac. 1120.

e. Of part of district.

See Adjudication, Sec. 27.

See Canal Company, Sec. 101.

Sec. 230. Laches.

of.

Institution of suit will not necessarily relieve from charge

The mere institution of a suit does not of itself relieve a person from a charge of laches, and if he fail in the diligent prosecution of the action, the consequences are the same as though no action had been begun. Hagerman v. Bates, 24 Colo. 71, 49 Pac. 139.

Sec. 231. Lapse of time.

See Abandonment.

Sec. 232. Mandamus.

a. Affidavit.

Syl. "The petition and affidavit for mandamus need not necessarily be separate papers." Golden C. Co. v. Bright, 8 Colo. 144, 6 Pac. 142.

The petition if verified fills the requirement of an affidavit. Id. 144.

"It must state a cause of action *** Its legal sufficiency may, by the return or answer provided for in the Civil Code, be challenged as upon demurrer and tested under the rules of pleading applicable to the ordinary complaint, when assailed by demurrer." Wheeler v. Northern C. I. Co., 10 Colo. 582-586, 17 Pac. 487; People v. Farmers' H. L. C. Co., 25 Colo. 202-203, 54 Pac. 626.

Commanding that to be done which is impossible to perform.

In 42 Colo. 267, 93 Pac. 1125, it was held that, where a mandamus was granted by the trial court for the delivery of water in 1903, and in 1904 an appeal was taken, that the cause should be dismissed on account of commanding that to be done which was impossible to perform.

Sec. 233. Objection to judgment-Trial to court.

"In an equitable action, tried to the court, when an exception is reserved to the judgment and properly preserved in the record, the evidence as a whole may be examined (on appeal) for the purpose of ascertaining if it will sustain the judgment, even though no objection was interposed to its reception.―Jerome v. Bohm, 21 Colo. 322, 40 Pac. 570; Phelps v. Spruance, 1 Colo. 414; Breen v. Richardson, et al., 6 Colo. 605;" Tubbs v. Roberts, 40 Colo. 498-505, 92 Pac. 220.

"A ditch company may itself maintain an action to protect the rights of its stockholders and consumers of water under its ditch." Canal Co. v. Loutsenhizer D. Co., 23 Colo. 233, 48 Pac. 532; Independent D. Co. v. Ag. D. Co., 22 Colo. 513, 45 Pac. 444; Sterling v. Pawnee D. E. Co., 42 Colo. 421,431, 94 Pac. 339.

b. Consumers-In adjudication.

The consumers of water need not be made parties to an adjudication proceeding.

"Courts will never sanction a practice which imposes an impossible or even an unreasonable requirement upon litigants." Ind. D. Co. v. Ag. D. Co., 22 Colo. 513-524, 45 Pac. 444.

c. Defect of parties.

A defect of parties, as contemplated by Code Sec. 31, must be construed as meaning those parties without whom no decree could be rendered. Blakely v. Ft. Lyon C. Co., 31 Colo. 224-226, 73 Pac. 249.

d. Grantors.

A party is bound by an adjudication if his grantor was a party to the proceedings.

e. In injunction.

Syl. "Where a canal company sold water rights * * and by a decree of court the canal was conveyed to a new company organized by said water right owners for the purpose of managing and operating the property, and the directors of the new company conspired and operated with the holder of a mortgage on the canal system executed by the old company after it had sold the entire capacity of its canal to water rights owners, to enable said mortgagee to enforce its invalid mortgage, the water right owners were proper parties to bring an action to cancel said mortgage and to restrain said directors and mortgagee from further attempting to obtain payment thereof from the property of the canal system." New La Junta & L. C. Co. v. Kreybill, 17 Colo. App. 26-27, 67 Pac. 1026.

“If plaintiff had, by 'priority of appropriation,' actually acquired 'the better right' to the use of the water of a natural stream than either or all of the several defendants, he was entitled to have such priority protected against their acts, whether joint or several, and for that purpose was entitled, if necessary, to join them all as defendants in one action ***. He may bring and maintain an action jointly against all parties, junior in right to himself, whenever the result of their acts, either joint or several, deprives him of his better right to the use of the water, or substantially interferes therewith." Saint v. Guerrerio, 17 Colo. 448, 454, 29 Pac. 746.

f. Sale of excess rights.

See Canal Company, Sec. 93b, 100.

All parties to whom excess rights have been sold need not be made parties to a suit to cancel such excess rights. "Merely because rights have not been cancelled which have no better

standing than those of appellants is not a matter of which they can complain, for it in no manner prejudices their rights." Blakely v. Ft. Lyon C. Co., 31 Colo. 224-244, 73 Pac. 249. See Distribution, Sec. 152c.

g. Loaning water.

See State Officers, Sec. 280c.

h. Necessary-In action relating to excess rights.

In an action to set aside conveyances of excess rights of water in a canal, the company making the sale or contract is not a necessary party. Blakely v. Ft. Lyon C. Co., 31 Colo. 224-236, 73 Pac. 249.

"The answer set up that there are water-right owners, other than the respondents brought in, who are interested in the pending proceedings adversely to petitioner, but their names are not given or their interests designated. This is not a good defense as it is pleaded. ***" Waterman v. Hughes, et al., 33 Colo. 270-279, 80 Pac. 891; Farmers' Ind. D. Co. v. Ag. D. Co., 3 Colo. App. 255, 32 Pac. 722.

i. State oficers.

See State officers, Sec. 279. See 234i.

"Their answer to the complaint may be disregarded, as it merely sets forth the statutory authority under which they are acting, and the validity of their acts depends upon the rights of their co-defendant company." Combs, et al. v. Farmers' H. L. C. & I. Co., 38 Colo. 420-422, 88 Pac. 396; Ind. D. Co. v. Ag. D. Co., 22 Colo. 513-514, 45 Pac. 444.

j. To adjudication.

Who are parties—“One is a party to these proceedings who has due notice thereof, or who appears therein, or files his statement of claim." Crippen, Trustee, v. The Y. X. I. D. Co., 32 Colo. 447-455, 76 Pac. 794.

See Review and Rehearing, Sec. 273.