Genest v. Las Vegas Masonic Bldg. Ass'n

Decision Date13 January 1902
Citation67 P. 743,11 N.M. 251,1902 -NMSC- 003
PartiesGENEST et al. v. LAS VEGAS MASONIO BLDG. ASS'N et al.
CourtNew Mexico Supreme Court

Syllabus by the Court.

1. In an adjudication of lien under statutes of New Mexico (sections 2216-2232, Comp. Laws N.M. 1897), not purporting in any manner to be a personal judgment against any nonresident defendant, substituted service of process by publication against such defendant is valid, the proceeding, as to such defendant, being in its character in rem.

2. An attorney at law, who is also a notary public in New Mexico may take the affidavit of his client or of his client's agent upon which service of process by publication is based it having for many years been the practice in New Mexico to do so, and there being nothing in the law to prohibit it.

3. Where it appears from the record that the officer before whom a lien claimant made the verification of his claim required by section 2221, Comp. Laws N.M. 1897, was a clerk of court of record of the state of Colorado, and that such officer was by the laws of Colorado empowered to administer oaths generally in said state, the verification is sufficient.

4. Where there is no dispute that a subcontractor, lien claimant, in good faith furnished material to be used, and that the material was used, in the construction of a particular building, and that such claimant's lawful demand therefor remained unsatisfied, the filing of its claim of lien when the building was substantially completed, there remaining to be done but seven or eight hours of one man's work of ornamental carving on the outside of the building, and the premises for several weeks theretofore being occupied for the purposes intended, is not premature but is a substantial compliance with the requirements of the statute that the claim shall be filed within 60 days after completion of the building.

5. The objection that the cross complaint should be stricken from the files because not signed by an attorney or counselor of the court is not in apt time, when not made until after answer of the merits of the cross complaint and replication filed by cross complainant duly signed by a counselor of the court; such irregularity being deemed to have been waived.

6. Where materials are furnished to be used, and in fact are used, in the construction of a particular building in New Mexico, the party so furnishing such material is entitled to the benefit of the lien laws of New Mexico, although said material was sold and delivered in another state.

7. Section 2229, Comp. Laws N.M. 1897, providing that "the court may also allow as part of the costs *** reasonable attorney's fee in the district and supreme courts," is not repugnant to section 1, art. 14, of the amendments to the constitution of the United States, providing, in part that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law."

Appeal from district court, San Miguel county; before Chief Justice William J. Mills.

Action by Frank Genest and the Newton Lumber Company against the Las Vegas Masonic Building Association and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Frank Springer and Andrieus A. Jones, for appellants.

Veeder & Veeder and W. L. Hartman, for appellees.


The salient facts found in the record are that prior to the 1st day of August, 1894, one of the appellants, the Las Vegas Masonic Building Association, entered into a contract with one Michael T. Kean to construct a building known as the "Masonic Temple Building" at East Las Vegas, N. M and soon thereafter began the construction of the building. The Newton Lumber Company, a corporation organized under the laws of the state of Colorado, entered into a parol contract with the said Michael T. Kean in Pueblo, Colo., whereby the Newton Lumber Company agreed to sell, furnish, and deliver to said Kean, f. o. b. cars at Pueblo, Colo., certain lumber, mill work, and other building material for the use by said Kean in the construction of the said Masonic Temple Building, for the sum of $2,469.57, which said sum Kean agreed to pay the Newton Lumber Company; and by this contract the Newton Lumber Company further agreed to furnish, sell, and deliver certain other lumber, mill work, and other building material to and for said Michael T. Kean for the use by him in the construction and completion of said Masonic Temple Building, and to perform certain other labor and services in and upon said building under said contract from time to time as the same may be ordered or required by or for said Kean for use in the performance of his contract for the building of said Masonic Temple and other improvements upon the premises described. The claim of lien of the Newton Lumber Company in this case is for materials furnished for use in the construction of the said Masonic Temple and for labor and services performed upon the said premises under the above-mentioned contract. The materials were furnished and the labor and services performed, as aforesaid, from time to time, between the 8th day of December, 1894, and the 31st day of July, 1895. The appellee, Frank Genest, was a stonecutter and subcontractor under Michael T. Kean, and performed services as such during the construction of the building. The work on said Masonic Temple Building under said contract with Michael T. Kean began about the 1st day of August, 1894, and was prosecuted continuously by said Kean and his bondsmen, with the exception of a few days' temporary delay in the early part of July, 1895, from said time of beginning until the 17th day of September, 1895, in the forenoon of which day the last work upon said building under said contract was done. The work on said building was all completed prior to the 1st day of September, 1895, except the stone carving upon the front entrance to the second and third floors of said building, which carving was outside ornamental work. But one man was employed in the doing of this work, and the second and third floors were occupied and used for the purposes for which they were intended during the whole time this carving was going on without interruption. The said stone carving was prosecuted continously from the 23d day of August, 1895, until and including the 17th day of September, 1895. and was part of the original plan of said building specified in the contract with said Kean. On the 16th day of September, 1895, at about 10 o'clock in the forenoon of that day, the Newton Lumber Company filed in the office of the probate clerk and ex officio recorder of San Miguel county, N. M., a claim of lien, which was sworn to before the clerk of the district court of Pueblo county, Colo. On the 6th day of November, 1895, Frank Genest filed in the office of said probate clerk his claim of lien, which was sworn to before the judge and acting clerk of the county court of Pueblo county, Colo. That these officers were qualified and authorized under the laws of the state of Colorado to take and administer oaths was shown by the evidence. On the 13th day of April, 1896, Frank Genest filed his bill of complaint for foreclosure of his alleged lien, and made parties defendant, among others, the appellants the Newton Lumber Company and Michael T. Kean. The Newton Lumber Company, on the 12th day of June, 1896, caused to be filed its cross bill of complaint for the foreclosure of the lien claimed by it. The principal contractor, Michael T. Kean, having left the territory of New Mexico, service was sought to be made upon him by publication, both upon the original complaint filed by Genest and the cross complaint filed by the Newton Lumber Company. The affidavit for publication in each instance was made by John D. W. Veeder, as agent of complainant and cross complainant, and sworn to by him before Elmer E. Veeder, as notary public, said John D. W. Veeder and Elmer E. Veeder constituting the law firm of Veeder & Veeder. When the cross complaint of the Newton Lumber Company was filed it was not signed by any member of the bar of the territory of New Mexico, nor was it signed by the Newton Lumber Company as cross complainant. It was signed, however, by Hartman & Clynn, of Pueblo, Colo., as solicitors for the Newton Lumber Company, and verified by W. C. Ponchan, its duly-authorized secretary. Afterwards, upon the offering of testimony by said cross complainant in support of the cross bill, on March 6, 1897, and after voluntary answer by appellants, filed in July 30, 1896, to the merits of the cross bill and replication filed in November 7, 1896, by cross complainant, duly signed by Veeder & Veeder, attorneys and counselors of the district court, appellants objected to the taking of any testimony under said cross bill upon the ground that the same had not been signed. Later, on October 2, 1897, an ex parte nunc pro tunc order was made, by which said firm of Veeder & Veeder were permitted to sign the cross bill of complaint of the Newton Lumber Company, as its counsel, as of the date of the filing of the cross bill, upon representations made by them that they were of counsel for said company at the time the cross bill of complaint was filed. When the affidavit for publication was made in behalf of Frank Genest, the original complainant, said firm of Veeder & Veeder appeared as solicitors of record for said complainant Genest. On the 23d day of November, 1899, appellants filed a motion to vacate the nunc pro tunc order above referred to, and to strike the cross bill of complaint from the files, which motion was overruled by the court. ...

To continue reading

Request your trial

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