Greene Plumbing & Heating Co. v. Morris
| Decision Date | 01 September 1964 |
| Docket Number | No. 10634,10634 |
| Citation | 395 P.2d 252,144 Mont. 234 |
| Parties | GREENE PLUMBING & HEATING CO, a Corporation, Plaintiff and Appellant, v. Edward MORRIS, Jr., and Edna Morris, husband and wife, Defendants and Respondents, and McLelland Lumber Co., Keith E. Norris and Patton & Linton, Inc., a Corporation, Defendants and Appellants. |
| Court | Montana Supreme Court |
Berg, O'Connell & Angel, Holter & Heath, and H. A. Bolinger, Jr., Bozeman, Charles F. Angel, Robert M. Holter and H. A. Bolinger, Jr., (argued), Bozeman, for appellants.
G. Page Wellcome (argued), Bozeman, Morrow & Nash, Bozeman, James H. Morrow, Jr., (argued) Bozeman, for respondents.
This is an appeal by plaintiff Greene Plumbing & Heating Co., and defendants, McLelland Lumber Co., Keith E. Norris, and Patton & Linton, Inc., from a judgment in favor of defendants, Edward Morris, Jr., and Edna Morris, husband and wife.
Plaintiff brought an action to foreclose a mechanic's lien on property belonging to defendants, Edward Morris, Jr., and Edna Morris, hereinafter referred to as defendant Morris. McLelland Lumber Co., Keith E. Norris, and Patton & Linton, Inc., are also seeking to foreclose mechanics' liens on the Morris property, and are cross-complainants in this action.
Plaintiff is a corporation duly organized and existing under the laws of the State of Idaho with tis principal place of business in Idaho. Lindsey Construction Co., Inc., hereafter known as Lindsey, a defendant but not a party to the appeal in this matter, is also a corporation organized and existing under and by virtue of the laws of the State of Idaho with its principal place of business in Idaho. Defendants, McLelland Lumber Co. and Patton & Linton, Inc., are both Idaho corporations, and both sold and delivered, in the State of Idaho, materials to Lindsey resulting in the filing of liens and their appearance in this action. Keith E. Norris is doing business as an individual and in his own name.
None of the Idaho corporations were qualified to do business in Montana under section 15-1701, R.C.M.1947, which requires foreign corporations 'doing business' within the State of Montana to file certain documents with the secretary of state. Nor has there been any attempt to do so up to and including the date of trial. Defendants, Edward Morris, Jr., and Edna Morris, are husband and wife, and Edward Morris, Jr., is the owner of and in possession of the property sought to be foreclosed, Lots 12 and 13 in Block 25 of the original townsite of West Yellowstone, Montana.
On October 6, 1958, defendant Morris entered into a contract with Lindsey whereby Lindsey was to construct and equip a motel building on the Morris property in West Yellowstone. The motel was to consist of 27 motel units and one utility room. Thereafter, on October 8, 1958, Lindsey, the principal contractor, entered into a contract, in Idaho with plaintiff, whereby plaintiff agreed to furnish material and labor for the installation of 27 bathroom units for the sum of $16,800. It should be noted here that defendant Morris paid approximately all of the money owed on the contract with Lindsey to Lindsey.
Between October 15, 1958, and Appril 26, 1959, approximately six months, plaintiff completed performance of the contract for furnishing and installing the bathroom units in the motel building that was being constructed on defendant Morris's property by Lindsey. For this work the following payments were made by Lindsey to plaintiff during the course of the above work as partial payment on the contract: on November 12, 1958, the sum of $1,566.30, and on December 10, 1958, the sum of $8,500.
Plaintiff's amended complaint contains two causes of action, one based on the express contract between plaintiff and Lindsey, and one based on an implied contract between plaintiff and defendant Morris, whereby plaintiff furnished and installed plumbing fixtures of a reasonable value of $16,935 in the motel building being constructed by Lindsey for Mr. and Mrs. Morris.
As to McLelland Lumber Co., hereafter known as McLelland, at the time the contract was entered into between Lindsey and defendant Morris for the construction of the motel, McLelland helped Lindsey figure the amount of materials needed for various parts of the motel. McLelland sold these materials and other materials to Lindsey of the total value of $12,734 and they were used in the construction of the motel. As a result of certain payments made by Lindsey to McLelland, McLelland's claims against defendant Morris were reduced to the sum of approximately $7,918.88, being the amount claimed in this action.
The claim of Patton & Linton, Inc., is for the sum of $456.12 for two orders of cement which was delivered to West Yellowstone and used in the construction of the motel.
Keith E. Norris's claim is for approximately $1,870.66 for furnishing and installing gypsum board in the motel; the contract for such transaction being made with Lindsey.
Thus, we have an action to foreclose mechanics' liens where the principal contractor, Lindsey, and three of the subcontractors, plaintiff, Greene Plumbing & Heating Co., McLelland, and Patton & Linton, Inc., had not qualified to do business within the State of Montana as foreign corporations at any time up to and including the date of trial. Additionally, it should be noted from the judgment roll that Lindsey, a co-defendant and principal contractor, was not served by any of the cross-complainants which includes McLelland, Patton & Linton, Inc., and Keith E. Norris. The only appearance by Lindsey was a purported affidavit of service filed on behalf of plaintiff, acknowledging service of the amended complaint. The acknowledgment of service appears in the judgment roll and was objected to by defendant Morris upon the ground that the time and place of service did not appear in the acknowledgment other than in the jurat, and for this reason was insufficient under section 93-3018, subd. (4), R.C.M.1947, (now repealed, but in effect when this action was filed).
The problems arising from the instant case may be summarized as follows:
(1) Did the district court err in concluding that it had jurisdiction and power to adjudicate the liens of all parties, including plaintiff and the cross-complainants, and that it had jurisdiction over Lindsey Construction Co., the principal contractor?
(2) Whether the failure of plaintiff, Lindsey Construction Co., and the cross-complainants to qualify to do business within the State of Montana under section 15-1701, R.C.M.1947, renders the liens unenforceable? (3) Were the Idaho corporations excluded from the necessity of qualifying to do business within the State of Montana because they were only engaged in interstate commerce and not intrastate commerce?
The initial consideration for this court is to determine whether the district court had jurisdiction and power to adjudicate the liens of all the parties, including plaintiff and the cross-complainants, and that it had jurisdiction over Lindsey. Defendant Morris contends that the appearance and waiver executed by Lindsey acknowledging receipt of the amended complaint filed by plaintiff is defective. We cannot agree with defendant Morris's contention. The instrument sufficiently complies with section 93-3018 () which provided as follows:
Proof of the service of summons and complaint must be as follows:
'4. The written admission of the defendant.
'In case of service otherwise than by publication, the certificate or affidavit must state the time and place of service.' (Emphasis supplied.)
The appearance and waiver is neither a certificate nor affidavit as referred to in the staute; rather, it is a written admission by Lindsey specifically admitting service upon it of plaintiff's amended complaint as provided by section 93-3018, subd. (4), supra, and subjecting Lindsey to the jursidiction of the trial court in respect to plaintiff's action. The statute specifically states that where proof of service is made by certificate or affidavit, such certificate or affidavit must state the time and place of service, but that statute does not state that a written admission of service whereby a defendant subjects himself to the jurisdiction of the court must contain such information. It is true that it could be implied from reading the statute as a whole that a written admission by a defendant, like a certificate or affidavit, should contain the time and place of service, but if the statute is strictly followed on its language, it will be noted that the statute does not expressly state that the time and place of service must be contained in the written admission of service. We hold that counsel for plaintiff was reasonably justified in concluding that a written admission was not required to contain the time and place of service. Moreover, even if the admission of service was defective because it did not contain the time and place of service, it would be merely a technical error and not a prejudicial and reversible one.
A more serious question is presented by the failure of the cross-complainants, McLelland Lumber Co., Patton & Linton, Inc., and Keith E. Norris, to serve the principal contractor and co-defendant Lindsey. The question is whether such failure prevented the district court from acquiring jurisdiction over the mechanics' liens sought to be foreclosed by the cross-complainants. In Monarch Lumber Co. v. Wallace, 132 Mont. 163, 166, 314 P.2d 884, this court said:
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