Colorado Iron-Works v. Sierra Grande Min. Co.

Decision Date07 November 1890
CourtColorado Supreme Court
PartiesCOLORADO 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: 'State of Colorado, Arapahoe county--ss.: I do hereby certify that I have duly executed the within summons on this 13th day of November, A. D. 1886, by delivering a true copy of the same to Samuel Alsop, a stockholder of the within-named defendant, the Sierra Grande Mining Company, personally, at the city of Denver, in the county of Arapahoe, and state of Colorado. I further certify that said corporation keeps no principal office in any county in the state of Colorado, and there is no county in which the principal business of said corporation is carried on, and that no president, or other head of said corporation, or vice-president, secretary, treasurer, cashier, general agent general superintendent, or agent thereof, could then be found, or was then or can now be found, or is now in the county of Arapahoe, state of Colorado, but each and every officer was then, and is now, absent from said county; and I further certify that, at the same time and place, I delivered to said Alsop a copy of the complaint herein. FREDERICK CRAMER, Sheriff. By J. M. CHIVINGTON, Under Sheriff.' 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 'Making special appearance, and moves the court that the summons and the return thereon be quashed, and that defendant be not compelled to answer the complaint, on the ground that this court has no jurisdiction of person of defendant; states that defendant is a foreign corporation, organized and incorporated under the laws of New Mexico, and not elsewhere; that no summons has been served on it in this state, or elsewhere; that, at the time of pretended commencement of this action, or at any time previous thereto, or since, it was not and is not doing business in this state, and that it has no principal or other office in any county in this state, nor had it at the time of commencement of this action, nor at such times had it any principal or other place of business or of doing business in this state; nor had it at the time of pretended commencement of this action, or before or since, residing in this state, or having any office or place of business in this state, any president, secretary, treasurer, cashier, general agent, general superintendent, or agent, or any other representative, stockholder, or other person, who in any manner represented it, or who was by it authorized to receive service of summons or other processes in this state; and further that said Samuel Alsop, Jr., did not at the time of the service of the summons in this action, nor did he at any time before or since, represent the defendant in any capacity whatever, official or other wise, in the state of Colorado, or elsewhere; nor was he at such time or times in this state in any official character or capacity as an agent, officer, or representative of defendant; nor was he doing at such time or times any business for said company in this state, or elsewhere; nor was he authorized to do any business for the defendant, or to represent it as an officer or agent, or to receive service of summons or other process. And further, said Alsop was not at the time of said service, a stockholder, officer, agent, or representative of defendant. THE SIERRA GRANDE MINING COMPANY OF NEW MEXICO. By R. H. GILMORE, Its Attorney. Verified by R. H. Gilmore, as attorney.' 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: 'Now comes the plaintiff in the above-entitled action, and makes this, its replication, to the motions of the defendants, heretofore ordered by the court to be taken as a plea in abatement or answer herein, and alleges the issuance of summons and service and returns thereof setting out the returns in full; denies that defendant was not at any time previous to the commencement of this action doing business in this state, but, on the contrary, alleges that said defendant did, prior to the commencement of this action, enter this state and do business therein, and submitted itself to the jurisdiction of the courts of this state, and on the 31st day of August, 1885, in the city of Denver, in the county of Arapahoe, and state of Colorado, enter into the written contract set out in the complaint herein and upon which this action is brought; alleges that nearly all the machinery called for by said contract was to be manufactured by said plaintiff at said city of Denver, as was well known to said defendant when said contract was entered into, and was so manufactured; that all the moneys that were to become due and payable under said contract were to become due and payable at said city of Denver, and the cause of action in said contract arose within the state of Colorado, and that the goods, wares, and merchandise, alleged in the second cause of action to have been sold and delivered, were sold by plaintiff to defendant at the city of Denver, state of Colorado, and were to be paid for at said city; and that the second cause...

To continue reading

Request your trial
39 cases
  • Belle City Manufacturing Co. v. Frizzell
    • United States
    • Idaho Supreme Court
    • May 9, 1905
    ... ... 310, ... 35 P. 539, 24 L. R. A. 311; Colorado Iron Works v. Sierra ... Grande Min. Co., 15 Colo. 499, 22 ... ...
  • Henry R. Jahn & Son, Inc. v. Superior Court In and For San Mateo County
    • United States
    • California Supreme Court
    • March 26, 1958
    ...case have sustained jurisdiction on the basis of the defendant's purchasing activities in the state. Colorado Iron-Works v. Sierra grande Min. Co., 15 Colo. 499, 25 P. 325, 327-328; Premo Specialty Mfg. Co. v. Jersey-Creme Co., 9 Cir., 200 F. 352, 356, 43 L.R.A., N.S., 1015; Dungan, Hood & ......
  • State, to use of Hart-Parr Co. v. Robb-Lawrence Co.
    • United States
    • North Dakota Supreme Court
    • January 2, 1906
    ... ... Sherman, 28 Ore. 573, 43 P. 658; ... Colorado Iron Works v. Sierra Grande Min. Co., 15 ... Col. 499, 25 ... ...
  • Parris v. H. G. Fischer & Co.
    • United States
    • North Carolina Supreme Court
    • March 19, 1941
    ... ... 678, 27 L.R.A.,N.S., 493, ... 18 Ann.Cas. 1103; Colorado Iron-Works v. Sierra Grande ... Mining Co., 15 Colo. 499, ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT