ON REHEARING.
Elbert, J.In view of the gravity of the complaint made in the petition for rehearing, I have examined the record, not only in this case, but the record in the former case, decided at the April term, 1887 (10 Colo. 5), the decision therein being also the subject of criticism in the petition for rehearing. I have done this with the view of seeing whether, in the pressure of business, any substantial fact had been overlooked, or substantial in*360justice done in either case. The grounds- of the decision rendered in April are plain and simple and cannot be questioned. The plaintiff failed to return to the assessor a list of his taxable property, as required by statute, and his property was listed by the assessor, as was his duty under the statute. If he was assessed too high, or for too much property, it was his duty to apply to the board of equalization for correction of these errors, which he-failed to do either of his own accord or at the repeated solicitation of the board of county commissioners.' Having neglected all the means and modes provided by the 'statutes for the correction of errors in his assessment, he cannot correct them by an appeal to the chancery jurisdiction of the courts. And to these plain propositions the opinion cites abundant and well-considered authorities. It was further urged in that case that the assessor did not complete the plaintiff’s assessment list within the time prescribed by statute, and it was therefore without validity. It was held, however, that this was not fatal, and that there was a sufficient compliance with the statute. Upon the authority cited I have no doubt about the correctness of this conclusion.
In his petition for rehearing in that case, counsel for the appellee urged that the objection to the assessment “chiefly relied upon” was that it was made by the assessor “in the presence of and under the directions of the board.” There was nothing to prevent the assessor from making out his list in the presence of the county commissioners, or any one else, nor did the record disclose any proper or sufficient evidence that it was made under the directions of the board, for which reason it was not considered a good ground for rehearing.
Our decision in that case should have ended this litigation. The plaintiff’s counsel, however, drafted another bill substantially the same as the bill in the former case, went to another county and to another judge, and asked for a temporary injunction substantially upon the same *361grounds and for the same reasons as set forth in his former bill. An injunction was granted, the defendant appeared and answered, first traversing the allegations of the bill, and for further answer set up the fact that another suit was pending in the same cause of action in which a decision of this court had been rendered, and moved to dissolve the injunction. Üpon the hearing of the motion to dissolve he offered in evidence, inter alia, the summons and the complaint in the former suit, and the opinion of this court, which the court refused to consider. This was error, and upon this question there can be no doubt. The proceedings in the original suit did not constitute new matter, and were a complete defense to the action.
It is insisted by counsel that there was an agreement between counsel, in the presence of the court, upon the hearing of this motion, that the answer of what is termed “ new matter ” should not be considered by the court, and it was made a ground of serious complaint that we have annulled the agreement of parties in this respect. In support of the proposition that there was an agreement of this kind by counsel, we are cited to the supplemental record filed by the appellee, which recites, among other things, as follows: “ It is now ordered, considered and adjudged that the bill of exceptions in this cause be amended, and made to show that, at the beginning of the hearing upon the motion made by defendant to dissolve the injunction, the plaintiff Haley, by counsel, objected to any hearing or introduction of evidence, or any consideration of pleas of n§w and affirmative matter set up and pleaded in the answer filed in this cause, and authorities were read by plaintiff showing such to be the law, and the defendant, by counsel, said he supposed such to. be the law, upon the authorities read; wherefore, after argument by plaintiff’s counsel, the judge held that the pleas of new and affirmative matter should not *362be heard, gone into or considered at this hearing in vacation, and that no evidence now offered or introduced would be considered as' applicable to the pleas of new affirmative matter at this hearing; and also that the plaintiff objected to the introduction of all evidence offered to prove any matter contained in the pleas of new and affirmative matter. ” Much of this is strange matter for a bill of exceptions, and we are surprised that it is seriously urged that it constitutes an agreement between counsel, upon the hearing of' the motion to dissolve the injunction, that the pleas of what is called new matter should not be considered. Plaintiff’s counsel read authorities to the effect that such and such was the law, and defendant’s counsel said he supposed such to be the law, upon the authorities read. It is sufficient tp say that it is not competent for counsel to stipulate as to what the law is so as to bind this court. As a matter of fact, they do not appear to have stipulated in the court below, as the record shows that they did offer to prove the pendency of the former suit; but the court refused to consider the evidence on the ground that it was new matter, and an exception was taken thereto, which was made the basis of an assignment of errors. The plea of a suit pending was not new matter, as held in the opinion of Chief Justice Beck, and the court below erred in treating it as new matter; and, had the counsel below entered into a written stipulation that it was new matter, which could not be considered on an application to dissolve ail injunction, it would not have bound this or any other court.
We do not care to restate the grounds of our decision. They are stated clearly and definitely in the opinion delivered by the chief justice, and are abundantly supported by the authorities which he cites. The whole proceeding in this case appears to us to be an unwarranted attempt to have matters re-adjudicated which have already *363been decided against the plaintiff, and to further harass the authorities of the county, and delay the collection of its revenue. The petition for rehearing is denied.
Rehearing denied.