Daughtrey v. Carpenter

• Decision Date: 14 December 1970
• Docket Number: No. 8967,8967
• Parties: Frank DAUGHTREY and Margie Daughtrey, his wife, and First National Bank in Albuquerque, Defendants-Appellants and Cross-Appellees, v. James O. CARPENTER and Orrion Perry, d/b/a Gas Appliance Service Co., Defendants-Cross-Claimants-Appellees, Defendants-Cross-Claimants-Appellees, Blueher Lumber Company and Dar Tile Company, Defendants-Appellees and Cross-Appellants.
• Court: New Mexico Supreme Court

Page 807

477 P.2d 807

82 N.M. 173

Frank DAUGHTREY and Margie Daughtrey, his wife, and First

National Bank in Albuquerque, Defendants-Appellants and Cross-Appellees, v. James O. CARPENTER and Orrion Perry, d/b/a Gas Appliance

Service Co., Defendants-Cross-Claimants-Appellees,

Defendants-Cross-Claimants-Appellees,

Blueher Lumber Company and Dar Tile Company,

Defendants-Appellees and Cross-Appellants.

No. 8967.

Supreme Court of New Mexico.

Dec. 14, 1970.

Stuart Hines, Clyde E. Sullivan, Jr., Albuquerque, for defendants-appellants

McNeany, Rose & Sholer, Albuquerque, for James O. Carpenter.

McAtee, Marchiondo & Michael, Pat Chowning, Albuquerque, for Orrion Perry.

Oliver Burton Cohen, Albuquerque, for Blueher Lumber Co. and Dar Tile Co.

OPINION

WATSON, Justice.

The complaint in this action was filed by a subcontractor of Mock Homes, Inc. to foreclose a labor and material lien against the home of Frank and Margie Daughtrey. The Daughtreys purchased the premises so soon after its construction that the time for filing liens had not expired. At the time of their purchase they executed a mortgage to First National Bank in Albuquerque. The complaint joined other lien claimants against the property, some of whom filed cross-claims; and this appeal is by the home owners and the mortgagee from a judgment in favor of cross-claimants James O. Carpenter, Blueher Lumber Company, Dar Tile Company, and Orrion Perry. The claims of the plaintiff and the other defendants have either been settled or dismissed without appeal. This case is similar in background and proceeding to that described in Brito v. Carpenter, 81 N.M. 716, 472 P.2d 979 (1970).

Appellants' first claim of error is that the statute of limitations has run against appellees' claims because they did not timely commence proceedings on their cross-claims. Section 61--2--9, N.M.S.A., 1953 Comp., reads in part:

'No lien provided for in this article binds any building, mining claim, improvement or structure for a longer period than one (1) year after the same has been filed, unless proceedings can be commenced in a proper court within that time to enforce the same * * *.'

Here, although the cross-complaints of appellees Blueher, Dar Tile, and Perry were timely filed with the clerk of the court, appellants state they were not served with reasonable diligence as required by Rule 4(e)(5) of the Rules of Civil Procedure (§ 21--1--1(4)(e)(5), N.M.S.A., 1953 Comp.).

After the complaint was filed, and on December 12, 1966, the attorneys for appellants Doughtreys filed an Entry of Appearance in this case; and on January 9 1967, the attorneys for appellant First National Bank filed a similar appearance. On January 3, 1967, an Answer, Counterclaim, and Cross-Claim was filed by appellee Blueher, and a similar pleading was filed on the same day by appellee Dar Tile. Both of these appellees had the same attorney; and when their pleadings were filed, they bore his certificate of service by mailing to opposing counsel of record, although the date of such mailing is not noted. Since there had been attorneys of record for the Doughtreys since December 12, 1966, we believe there was sufficient evidence for the trial court to find that service of these cross-claims on the Doughtreys was timely. Rules 5(a) and (b) of the Rules of Civol Procedure (§ 21--1--1(5)(a) and (5)(b), N.M.S.A., 1953 Comp.) do not require service of a summons with a cross-claim except on parties in default.

Appellant First National Bank had not appeared at the time of the filing of Blueher's and Dar Tile's pleading bearing their attorney's certificate. There is no evidence as to service of the cross-claims of Blueher and Dar Tile on the Bank. We need not decide, however, whether failure of service of the claim on the Bank mortgagee prevents the establishment of the lien or a determination of the relative priorities as against it, as these questions were not called to the attention of the trial court. State ex rel. Brown v. Hatley, 80 N.M. 24, 450 P.2d 624 (1969). Appellant Bank did submit a requested finding that appellees failed to serve cross-complaints on it prior to the trial, and it was not afforded 30 days within which to answer. Even this objection was not pressed prior to or during the trial in which it appeared generally. See Miera v. Sammons, 31 N.M. 599, 248 P. 1096 (1926).

An Answer, Cross-Claim and Cross-Complaint was filed by appellee Perry on March 3, 1967, which bore his attorney's certificate of mailing to opposing counsel on March 1, 1967. We believe this was sufficient evidence for the court to find timely service of these pleadings on both appellants who had counsel of record at that time and we affirm its ruling as to Perry as we do for Blueher and Dar Tile.

The case here on appeal was A23766 below and was involved in the consolidation and grouping described in Brito v. Carpenter, supra. Appellee Carpenter here was appellee Carpenter in Brito, and the recital of Carpenter's pleading in Brito is applicable here. In his 'Responsive Pleading' filed in 'No. 23258 et seq Consolidated' he did not mention this case, No. A23766. The same order of October 11, 1967, described in Brito, permitted an amendment to add under Cause Number: 'A--23766'; under Amount: '$525.00'; and under Date of Recording: 'May 13, 1966.' Even if sufficient, this was untimely. Not until February 3, 1969, did appellee Carpenter, by an 'Amended Answer, Cross-Claim, and Counterclaim,' file an appropriate cross-claim in this action. As we held in Brito, neither of the amendments could relate back because no claim for relief was filed within the statutory period. Carpenter's failure to file suit within one year from the filing of this lien is fatal, regardless of any lack of diligence in service on appellants. We cannot affirm as to appellee Carpenter.

At the trial, appellants objected to the admission into evidence of appellee Blueher's claim of lien, because it was not properly verified by the person signing the claim, as required by § 61--2--6, N.M.S.A., 1953 Comp. On June 7, 1966, a verified claim of lien was filed with the county clerk for Blueher Lumber Co., Inc. It was signed and verified as of June 3, 1966, by Raymond Bennett, general manager of the company. The lien was on a printed form with the blanks filled in. After the printed word 'CONDITION:' the words 'Total amount unpaid.' were typed. After this claim of lien had been recorded the original document was returned to Blueher's attorney, and the word 'SUPPLEMENTAL' was typed above the printed words 'MECHANIC'S CLAIM OF LIEN,' and following the words 'Total amount unpaid.' the following was added: '/ materials furnished from 1/26/66 thru 3/10/66.' A list of Mock Homes' properties was also attached, and thereafter the supplemental or amended claim was again signed and verified by the general manager as of June 15, 1966, and refiled with the county clerk on June 16, 1966. The supplemental or amended lien claim was admitted into evidence.

No contention is made that either the first or second lien claim was not timely filed. The contention is only that an alteration of the original instrument voids it. But the cross-claim of appellee Blueher was not based upon the original lien claim. The Supplemental Mechanic's Lien Claim is attached to the pleading and is the one relied upon. It appears to be timely filed, to contain the necessary recitals, and to be properly verified. The fact that Mr. Bennett may have verified his previous verification and reused a form which had previously been recorded would not be material. Hot Springs Plumbing and Heating Co. v. Wallace, 38 N.M. 3, 27 P.2d 984 (1933). Certainly no prejudice is shown to the owners. Crego Block Co. v. D. H. Overmyer Co., 80 N.M. 541, 458 P.2d 793 (1969). We find no error in admitting into evidence the supplemental or amended claim filed on June 16, 1966.

Appellants question the trial court's jurisdiction to enter a judgment on appellee Perry's claim because his 'Answer, Cross-Claim and Cross-Complaint' does not allege the time and place when the materials were furnished or that they were incorporated and used in the property or made pursuant to a contract nor does it allege when the work was finished or that notice was given to the owner. In addition, it does not allege that the lien was timely filed or that Perry was a licensed contractor at the time the labor and materials were furnished.

Perry had five lien claims as a result of his subcontracts in the Mock Homes subdivision. These were all incorporated into a single pleading. It was filed in the consolidated action and in this cause. It asked foreclosure of five lien claims on the premises involved in this suit and the premises in four other suits. It referred to the matters involved in this cause as follows:

Exhibit '3' is the claim of lien involving the Doughtreys' premises. A copy of it is attached to the pleading filed herein. It recites the name of the owner, the person by whom the claimant was employed, and to whom he furnished materials, and it describes the property and states the amount the claimants demand. In addition to this information, § 61--2--6, N.M.S.A., 1953 Comp., requires 'a statement of the terms, time given and conditions of his contract.' Under this recital in the printed form is typed '30 days net cash.' The lien claim would comply with the requirements of the statute. Crego Block Co. v. D. H. Overmyer Co., supra; Allsop Lumber Co. v. Continental Casualty Co., 73 N.M. 64, 385 P.2d 625 (1963). The recitals in the exhibit are part of the pleading to which it is attached. Rule of Civil Procedure 10(c) (§ 21--1--1(10)(c), N.M.S.A., 1953 Comp.).

There are no special statutory requirements for the allegations in complaints to enforce a mechanic's lien. All of the matters indicated by appellants, which appellee Perry failed to allege, were established at the trial by his testimony and exhibits. Appellants objected only to...