B. F. Salzer Lumber Co. v. Lindenmeier

• Decision Date: 07 April 1913
• Citation: 54 Colo. 491,131 P. 442
• Parties: B. F. SALZER LUMBER CO. et al. v. LINDENMEIER et al.
• Court: Colorado Supreme Court

131 P. 442

54 Colo. 491

B. F. SALZER LUMBER CO. et al. v. LINDENMEIER et al.

Supreme Court of Colorado

April 7, 1913

Error to District Court, Larimer County; James E. Garrigues, Judge.

Consolidated actions by the B. F. Salzer Lumber Company, the Hallack &amp Howard Lumber Company, and the Hinchman-Renton Fire Proofing Company, and others against William Lindenmeier and others. There was a judgment denying relief to plaintiffs named, and they bring error. Reversed in part, and affirmed in part.

Doud &amp Fowler, of Denver, for plaintiff in error, B. F. Salzer Lumber co.

Benedict & Phelps, of Denver, for plaintiff in error, Hallack & Howard Lumber Co.

Geo. S Redd, of Denver, for plaintiff in error Hinchman-Renton Fire Proofing Co.

J. F Farrar, of Denver, for defendants in error.

SCOTT J.

A number of lien claimants brought suit to foreclose their respective claims of mechanic's lien upon the premises owned by defendants in error for materials alleged to have been furnished in the construction of a building thereon, known as the Opera House building in the city of Ft. Collins. Among these several claimants were the plaintiffs in error. Each suit was a separate one, and upon the trial all were consolidated and tried at the one hearing as provided by statute. The lien claims in all cases were sustained, with the exception of those of plaintiffs in error, each of which was denied by the trial court.

It appears that the defendants in error. entered into a contract with defendant the Cole-Potter Construction Company, a corporation, for the construction of such Opera House building. The owners prior to the commencement of construction filed for record a certain contract, but it is agreed that this was insufficient to protect the defendants under the statute in such case, and is therefore eliminated from consideration. It also appears that the Cole-Potter Construction Company some time during the month of October, 1907, and before the completion of the building, abandoned the contract. The Cole-Potter Construction Company made no appearance in any of these cases. The Hinchman-Renton Fire Proofing Company's claim was for certain metal lath furnished and used in the construction of the building, and of the value of $109.35. The only objection to the allowance of this claim urged and considered by the trial court was the claim of the appellees that no service of summons in the cause was had upon the contractors the Colt-Potter Construction Company. This service was questioned in the supplemental answer of appellees to the complaint of the Hinchman-Renton Fire Proofing Company, in which it was alleged that C. S. Potter, upon whom the personal service had been made as secretary of the Cole-Potter Construction Company, was not at the time of service of summons either an officer, director, stockholder, or employé of such corporation, and that said Potter at the time of the service of such summons so stated to the officer making the service. The return of the sheriff is in every respect regular on its face, showing personal service upon defendant company by personally serving C. S. Potter as its secretary.

It is not necessary, however, for us to consider the question of the impeachment of the return, for that is not a question that can be raised by the defendants in error in this case; and, if it was, the objection was waived by them by first filing an answer, without objection to the sufficiency of the service upon the Cole-Potter Construction Company, and thus entering a general appearance in the cause. The question was attempted to be raised by a supplemental answer filed more than a year after the general appearance. An objection to a return, whether made by motion to quash or by plea in abatement, must be taken limine, for by appearing to the action and pleading to the merits all such objections are waived. 18 Enc. P. & P. 975.

This being the sole question in the case, and for this reason, the judgment of the district court as to the Hinchman-Renton Fire Proofing Company is reversed.

The claim of the appellant the S. F. Salzer Lumber Company was for two cars of lumber to be used as sheeting, and of the total value of $1,086.55. This was ordered by the Cole-Potter Construction Company, contractors, for use in the Opera House building of defendants, and the two cars were delivered on July 28 and August 19, 1907, respectively. This material was delivered and placed upon a lot adjoining the grounds upon which the opera house was being constructed, permission to use such lot for the purpose having been secured for the construction company through one of the defendant owners. There can be no question but that this sheeting lumber was sold by the lumber company to the construction company for the use specifically in the Opera House building then being constructed. But it is contended that little or none of this lumber was used in the construction of such building, and that some of it was used in another building then being...