Colorado Iron-Works v. Sierra Grande Min. Co.
Decision Date | 07 November 1890 |
Court | Colorado Supreme Court |
Parties | COLORADO IRON-WORKS v. SIERRA GRANDE MIN. CO. |
Commissioners' decision. Appeal from district court, Arapahoe county.
The appellant, plaintiff below, is a domestic corporation doing business in the city of Denver; the appellee is a foreign corporation organized under the laws of, and engaged in mining in, the territory of New Mexico. In August, 1885, the two corporations entered into a written contract by which appellant was to manufacture, furnish, and erect at the mines of appellee in New Mexico, certain machinery and appliances for the reduction of ores, for $39,260. The contract was made by the general manager or agent of appellee in its behalf and was to become operative upon its receiving the signature of the president. Payments were to be made,--10,000 upon the signing of the contract by the president; $15,000 upon the shipment by appellant of the heavy machinery; $5,000 when the work was completed, and the balance when the work was accepted by a committee, within 30 days after its completion. As far as is shown by the record, the contract was fully performed by appellant and the work accepted by appellee. It is alleged in the complaint that appellant furnished extra supplies and labor, to the amount of $3,340. It is admitted that certain payments were made, and alleges the balance remaining unpaid to have been $11,987.97. It is also alleged that a settlement was had at the city of Denver on the 25th of February, 1886; that the balance found due and agreed upon was as above stated, viz., $11,987.97. On the 13th of November, 1886, this suit was brought to recover such balance, with interest from the alleged date of settlement. Summons was issued, which was returned with the following indorsement: On the 22d of November, the following motion was filed by counsel of appellee: 'Now comes the defendant, the Sierra Grande Mining Company, by its attorney, R. H. Gilmore, and appears specially for this purpose, and no other, and moves the court that the summons herein be quashed, on the ground that it appears upon the return thereon, and on the face of the complaint served therewith, that defendant is a foreign corporation, not doing business within the state of Colorado and that the said summons was not served upon the proper person, as prescribed by law.' On the 9th of December appellee, by its counsel, presented the following paper On January 4, 1887, a hearing was had upon the motion of appellee of November 22d, when the following proceedings were had, and order entered: 'The defendant, by its attorney, R. H. Gilmore, Esq., who appears specially only in this action, asks leave to have its motion to quash the summons and return in this case, which was filed on December 9, 1886, to stand in lieu of its former motion for a similar purpose. served upon the plaintiff on the twenty-second day of November, 1886, and which is now, by direction of the court, upon plaintiff's request filed herein as of said twenty-second day of November, 1886, and it is accordingly so ordered without prejudice to the plaintiff's right to object to such substitution, or to any advantage which plaintiff may have been given by the service of said former motion.' On the 7th of January, counsel of appellant filed a motion to strike from the files appellee's motion of December 9th, for the following reasons: 'That the defendant had already, before that date, served on plaintiff herein a motion to quash the summons, which was by the court ordered filed as of November 22, 1886, and that defendant had already appeared in said action and waives all the matters set forth in said motion, and said motion was not filed in apt time, and moving for judgment as for want of an answer.' On January 27th, counsel of appellee moved the court for leave to withdraw its motion ordered to be filed as on November 22d. On January 31st, an affidavit of Alsop that he was not a stockholder of appellee at the time of the service of the summons, also affidavits of Mellor, president, and Brosius, secretary, of appellee, made in Philadelphia, that Alsop was not a stockholder, were filed. A hearing was had upon the motion of appellant to strike appellee's motion of December 9th from the files, and appellee's motion for leave to withdraw the motion of November 22d. Both motions were denied, and the court ordered 'that both the former and the latter motions, attacking the service of the summons herein, and the jurisdiction of the court over the person of the defendant, be allowed to stand as an answer or a motion in plea in abatement to the jurisdiction of the court over the person of the defendant, and that the plaintiff have leave to reply to said motions of the defendant as it shall be advised in twenty days from this date.' Appellant excepted to the judgment of the court in denying the motion to strike the motion from the files. On February 18, 1887, appellant replied as follows to appellee's answers or motions for pleas in abatement: ...
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