Empire Const. Co. v. Crawford

• Decision Date: 01 June 1914
• Docket Number: 7391.
• Citation: 141 P. 474,57 Colo. 281
• Parties: EMPIRE CONST. CO. v. CRAWFORD et al.
• Court: Colorado Supreme Court

141 P. 474

57 Colo. 281

EMPIRE CONST. CO. v. CRAWFORD et al.

No. 7391.

Supreme Court of Colorado

June 1, 1914

Appeal from District Court, La Plata County; Charles A. Pike, Judge.

Action by J. F. and James D. Mowry against W. H. Crawford, as original contractor, the Montezuma Valley Irrigation District, and the Empire Construction Company, and others. From an order setting aside the judgment against defendant Crawford, and in favor of the Empire Construction Company and from a judgment after trial in favor of defendant Crawford against the Empire Construction Company, it appeals. Reversed and remanded.

Ritter & Buchanan, of Durango, and Hayt, Dawson &amp Wright, of Denver, for appellant.

Thomas B. Stuart and Charles A. Murray, both of Denver, and Charles A. Johnson, of Durango, for appellees.

HILL J.

This action was instituted upon February 3, 1908, by J. F. and James D. Mowry, copartners, subcontractors, against W. H Crawford, as the original contractor, the Montezuma Valley Irrigation District, and the Empire Construction Company, as owners or having an interest in certain canals, reservoirs, etc., and against sundry other persons who were alleged to be subcontractors, materialmen, etc., under the original contractor, Crawford. The purpose of the suit was to secure a judgment against Crawford for services rendered and materials furnished upon, and used in, the construction of the canal and reservoirs, to have the rights of all parties determined, to have a lien upon these properties, foreclosure accordingly, etc. Numerous subcontractors and alleged lien claimants filed answers and cross-complaints. On February 29th Crawford filed a motion to make the complaint more definite. On March 9th this motion was heard, at which time Crawford was represented by attorneys Wheeler & Weiser. The motion was overruled, and he was given until March 16th to answer. On March 9th the Empire Construction Company filed its answer to the complaint and answers to the cross-complaints of sundry subcontractors. On March 12th the irrigation district filed its answer to the complaint, alleging its ownership of the property; that it was a public corporation, to wit, an irrigation district, etc., upon account of which its property was not subject to mechanics' liens, etc. On March 16th the defendant Crawford filed his answer and cross-complaint, in which he sets forth an alleged cause of action against the Empire Construction Company for work done and materials furnished on these properties, etc., his liens, etc. He prayed for judgment against that company for about $30,000, and that it be decreed a lien, for foreclosure, etc. On March 18th the district filed its answer to his, in which, among other things, it set forth its public character, account of which its property was not subject to liens, etc. On March 21st the Empire Construction Company filed its answer and cross-complaint to the cross-complaint of the defendant Crawford, wherein it denied liability to him, and set forth an alleged cause of action against him for damages growing out of his failure to comply with the provisions of his two contracts with it, etc. It prayed for judgment against him for $30,000, etc. Thereafter the defendant Crawford filed sundry answers to the cross-complaints of sundry subcontractors, motions to make more definite, etc. These were thereafter overruled. On April 23d the defendant Crawford filed his replication to the answer and cross-complaint of the Empire Construction Company. Sundry other pleadings and court's orders pertaining thereto followed, among which, upon May 4th, was a motion by the defendant Crawford for a continuance until the next term of court, account of the alleged absence of witnesses and the inability of his attorneys to be present. This motion, upon said date, was overruled, and the court proceeded to trial, which consumed part, if not all, of May 4, 5, 6, and 7, 1908, upon which last date decree was entered, which, among other things, recites, 'The defendant W. H. Crawford appearing by his attorneys Wheeler & Weiser;' also, 'Wheeler & Weiser filed a motion for the continuance of this cause for and on behalf of the defendant W. H. Crawford, which motion was by the court overruled.'

The decree sets forth that Crawford entered upon the construction and completion of the canals and reservoirs in question under two contracts with the Empire Construction Company; that in violation thereof he abandoned the work before completion; that at the time of this abandonment there was due him from the construction company under these contracts $7,415.02, which money was subject to the liens of the subcontractors; that the property on which the work was done was impressed with the character of public property, and was not subject to liens in so far as the title of the district was concerned, but that the money owing Crawford by the construction company grew out of, and was derived from, said property, and should be held for the payment of the liens; that Crawford violated his contracts, etc., and was not entitled to recover on his cross-complaints, and should take nothing; that the Empire Construction Company had been damaged in the sum of $10,000, account of Crawford failing to comply with his contracts, and is entitled to have judgment against him for this amount.

The claims of about 30 subcontractors were established in the decree against Crawford and fixed at certain amounts. Individual judgments against Crawford for these sundry amounts were inserted and decreed to be liens against the moneys in the hands of the construction company found to be owing Crawford. The decree recites that within 10 days from its date the Empire Construction Company pay to the clerk the balance found due on the contracts, viz., $7,415.02, on which liens were established, etc.; upon its failure so to do, that judgment be entered against it for this amount as of the date of the decree; that, upon the payment of this sum to the clerk, the construction company be released and discharged from all further liability upon account thereof; that, upon receipt of this money, the clerk pay, first, the costs of suit, second, all liens established as first class, third, 53 per cent. upon all liens established as second class, and retain the balance subject to the further order of the court; that the amount of said payments be credited upon the judgments against Crawford; that as to defendants Graham, Morrison, and Brimhall, the hearing be continued until the next term. The decree also contains a judgment against Crawford in favor of the Construction Company as follows:

'That the defendant the Empire Construction Company have and recover of the defendant W. H. Crawford the sum of $10,000, for which judgment is hereby rendered, and let execution issue therefor.'

An appeal appears to have been allowed the defendant Crawford from this decree, amount of bond fixed, and time given for bill of exceptions; but nothing done thereunder. Upon May 17th following the money found to be due from the construction company to Crawford was paid into court in compliance with the terms of the decree, and it appears to have been disposed of as ordered, without any exception or objection being made thereto.

Upon May 17, 1909, at a subsequent term of court, and over a year after the date of the decree, and more than six months after the adjournment of the term at which it was rendered, the defendant Crawford filed a motion to set it aside, alleging as his reasons that through misfortune and unusual hardships he was unable to be present at the trial by himself or counsel; that both he and his attorneys were taken by surprise, and that any seeming neglect on the part of either was excusable; that the cause was not properly at issue; that a part of it was left over, and the case not fully determined; that no final judgment had been entered from which the defendant could take an appeal; that the decree was tentative only, and subject to be annulled by further action of the court; that the judgment and decree was void; that the court had no jurisdiction of the subject-matter, etc.; that he was unable to apply for relief during the term at which the decree was entered, and makes this application at the first opportunity, etc. This motion was supported by the affidavit of the defendant Crawford, which, among other things, states that he was without means when the suit was instituted, but engaged Wheeler & Weiser to appear for him. This is followed by sundry statements pertaining to his finances, and as to why he was not present at the time of the trial; that he was at other points where he had secured employment. It also covers his motion for continuance which he says he anticipated would be granted and the engagements of his counsel at other places which prevented them from being present, etc. It states that he was not advised an appeal had been allowed him or time given for bill of exceptions until long after the adjournment of the March, 1908, term; that when he received this information he was without means to pay attorneys to go to Montezuma, or make any effort in his behalf pertaining to any suit, that account of which his attorneys withdrew from his employment, etc. The motion is also supported by the affidavit of S. N. Wheeler, which states that he is...