Franklin Contract Sales Co. v. First Nat. Bank of Denver, 79SC107
Decision Date | 18 August 1980 |
Docket Number | No. 79SC107,79SC107 |
Citation | 200 Colo. 370,615 P.2d 684 |
Parties | FRANKLIN CONTRACT SALES CO., Petitioner, v. FIRST NATIONAL BANK OF DENVER and Percy Wilson Mortgage and Finance Corporation, Respondents. |
Court | Colorado Supreme Court |
Stephen H. Diamond, Denver, for petitioner.
Towey & Zak, James J. Zak, Denver, for respondents.
We granted certiorari to review the decision of the court of appeals in Amco Electric v. First National Bank, 42 Colo.App. 124, 596 P.2d 70 (1979). We now reverse the judgment of the court of appeals.
Petitioner Franklin Contract Sales Company (Franklin), installed carpeting and draperies in a condominium project pursuant to an oral contract with the developer. Franklin completed the installation on December 26, 1974, and recorded its mechanic's lien on January 13, 1975. The project was deemed completed (abandoned) on March 23, 1975. 1
Amco Electric Company (Amco) commenced a foreclosure action on its mechanic's lien on the same condominium project on December 3, 1974. Franklin filed a Motion to Intervene, pursuant to section 38-22- 111(3), C.R.S. 1973, in the Amco action on August 21, 1975, within the six-month period for commencing an action to enforce a lien pursuant to section 38-22-110, C.R.S. 1973. The court did not grant the motion until October 27, 1975, after the six-month period had expired.
In February 1977, after hearing testimony and argument, a court-appointed Master held that Franklin's mechanic's lien was timely and valid, superior to the deeds of trust held by respondents. The Master concluded:
The trial court accepted those findings and entered judgment in favor of Franklin. The court of appeals reversed, holding that the mere filing of a motion to intervene within the six-month period is not sufficient to comply with the statutory requirements, but that the intervenor must also be joined by order of court within that period.
Section 38-22-110 provides in pertinent part:
"No lien claimed by virtue of this article * * * shall hold the property longer than six months after the last work or labor is performed * * * or after the completion of the building * * * unless an action has been commenced within that time to enforce the same * * * ."
Section 38-22-111 provides:
The mechanics' lien law contemplates that all lien claimants be made parties to an action to foreclose. In this case, Franklin was not a lien claimant at the time Amco commenced its action and thus could not initially be joined in the action. However, within six months of the filing of its lien, Franklin sought to intervene as provided by subsection (3) of section 38-22-111. This court has stated that "(i)t is unmistakably clear that it was contemplated by the lawmakers that 'all persons having claims for liens' were to be made parties (in a single action), 'if the statements have been filed' within the statutory time." Natl. Un. Fire v. Denver Brick, 162 Colo. 519, 427 P.2d 861 (1967). (Emphasis added.)
The court of appeals...
To continue reading
Request your trial-
Moore v. Grossman
...even though the order granting intervention is entered after the limitation period has expired. See Franklin Contract Sales Co. v. First National Bank, 200 Colo. 370, 615 P.2d 684 (1980); National Union Fire Insurance Co. v. Denver Brick & Pipe Co., 162 Colo. 519, 427 P.2d 861 (1967); Cox v......
-
King v. W. R. Hall Transp. and Storage Co.
...especially where court delays after filing of an action create statute of limitations problems. See Franklin Contract Sales Co. v. First National Bank of Denver, Colo., 615 P.2d 684 (1980). However, where, as here, the plaintiff commenced its action against seventeen additional defendants i......
-
People v. Scott, 79SA266
... ... Atty. Gen., Litigation Section, Denver, for plaintiff-appellee ... Scott first contends that the district court erred in denying ... ...
-
Amco Elec. Co., Inc. v. First Nat. Bank of Denver
...in a mechanic's lien foreclosure action and remanded the cause for determination of the remaining issues. Franklin Contract Sales Co. v. First National Bank, Colo., 615 P.2d 684 (1980). For a recitation of the facts of the case, reference may be made to the two prior opinions Appellants ass......