Howard v. Waale-Camplan & Tiberti

• Decision Date: 26 April 1950
• Docket Number: WAALE-CAMPLAN,No. 3586,3586
• Parties: HOWARD et al. v.& TIBERTI, Inc.
• Court: Nevada Supreme Court

Page 872

217 P.2d 872

67 Nev. 304

HOWARD et al. v. WAALE-CAMPLAN & TIBERTI, Inc.

No. 3586.

Supreme Court of Nevada.

April 26, 1950.

George E. Franklin, Jr., of Las Vegas, for appellants.

Leo McNamee and G. William Coulthard, both of Las Vegas, for respondent.

BADT, Justice.

This is an appeal from a lien foreclosure judgment and decree in favor of respondent corporation and against appellants as owners of a leasehold interest in the property. The judgment was also against Gene Austin and Harry Siegel, sublessees, being the persons who ordered the labor and materials, and also against J. H. Gates and Eula B. Gates, owners. As noted, only Howard, Messinger and Sweeten appealed. The original action in the court below was entitled 'J. Maher Weller v. Gene Austin, doing business as Blue Heaven' which was brought to foreclose plaintiff's lien. Plaintiff published the statutory notice to lien claimants, whereupon Waale-Camplan & Tiberti, Inc., 'coming in under' the published notice filed its 'statement * * * of facts constituting its lien,' joining as additional defendants J. H. and Eula B. Gates as owners, also the appellants herein as lessees, and the additional defendant Harry Siegel, joined with the original defendant Austin as sublesses. The fictitious defendants were joined in addition. Howard, Messinger and Sweeten answered and the corporation replied. The defendants Gates also answered, to which answer the corporation likewise replied. The default of Austin and Siegel having been entered, the trial proceeded against the other defendants, resulting in the lien foreclosure judgment from which Howard, Messinger and Sweeten have appealed.

Two errors are assigned, by reason of which it is contended that the judgment must be reversed with instructions to enter judgment in favor of appellants. It is contended, first, that the complaint is fatally defective by reason of plaintiff's failure to allege that it was a duly licensed contractor in accordance with the provisions of sec. 1474.34 et seq., N.C.L. 1931-1941 Supp. Secondly, appellant contends that plaintiff's action was barred because not commenced within six months from the filing of its lien pursuant to sec. 3742, N.C.L.

The parties stipulated to waive oral argument and to submit the appeal upon the briefs, and it was so ordered. Appellants' opening brief states: 'Inasmuch as this appeal is based upon the judgment roll alone, the facts necessary for its determination are fully set forth therein * * * Any detailed statement of facts would be merely repetitive of facts already contained in the judgment roll.' The papers constituting the judgment roll are described in sec. 8829, N.C.L. As the defaults of defendants Austin and Siegel were entered, the judgment roll properly included the affidavit for publication and summons and the order directing publication. The judgment roll also included (as respondent's complaint) its statement of facts constituting its lien, to which are annexed, as exhibits, its contract with Austin and Siegel, and also its claim of lien as filed with the county recorder; the original answer of Howard, Messinger and Sweeten, to which was attached as an exhibit the lease to them from Gates; also their amended answer, filed as to course, setting up as a separate and further defense the allegation that the action was not commenced within six months after the recording of the notice of lien; also the reply to such answer; also the general demurrer to the complaint and the order overruling same; also the answer of the defendants Gates and the reply thereto; also the findings of fact, conclusions of law and judgment or decree. No attack on the judgment roll has been made.

The present appeal requires no consideration of the pleadings affecting the defendants Gates. The briefs indicate that a motion for a new trial was made and denied, but the papers relative to the motion for new trial are properly not included in the judgment roll. Markwell v. Gray, 50 Nev. 427, 265 P. 705; McGill v. Lewis, 61 Nev. 28, 111 P.2d 537, 116 P.2d 581, 118 P.2d 702. No bill of exceptions has been filed.

We have described the nature of the record before us for the reason that both appellants and respondent, each chiding the other for the practice, have constantly referred to and argued matters outside of the record, including the evidence taken before the court, the proceedings had on the motion for new trial, proceedings had with reference to a motion for judgment on the pleadings and the presence or absence of proceedings in the trial court with reference to whether the defense of the plaintiff's failure to allege that it was a licensed contractor was ever presented to that court.

Appellants elected to appeal from the judgment roll and not upon a bill of exceptions. In like manner respondent, claiming that the lower court was in error in failing to allow it reasonable attorney fees under mandatory provisions of our lien statute, asks this court to make an allowance of attorney fees for the prosecution of the action in the district court, although it has filed no cross appeal nor any bill of exceptions to give this court an opportunity to pass upon the matter. Respondent also asks for an allowance for attorney fees in this court.

Appellants' first contention is that respondent's complaint failed to state facts sufficient to constitute a cause of action, because it did not allege its compliance with the following statutes:

' § 1474.31. License Necessary, When. § 1. It shall be unlawful for any person, firm, copartnership, corporation, association, or other organization, or any combination of any thereof, to engage in the business or act in the capacity of a contractor within this state without having a license therefor as herein provided, unless such person, firm, copartnership, corporation, association, or other organization, or any combination of any thereof is exempted as provided in this act.'

' § 1474.32A. Duly Licensed Contractor Only May Sue. § 3. No person, firm, copartnership, corporation, association, or other organization, or any combination of any thereof, engaged in the business or acting in the capacity of a contractor shall bring or maintain any action in the courts of this state for the collection of compensation for the performance of any act or contract for which a license is required by this act without alleging and proving that such person, firm, copartnership, corporation, association, or other organization, or any combination of any thereof, was a duly licensed contractor at all times during the performance of such act or contract.'

Respondent contends that this point is now raised for the first time on appeal. Appellants contend that it was presented to the district court. Respondent asserts that without objection the testimony was received to the effect that it was, at all times involved, a licensed contractor. Appellants deny this. Both parties have gone out of the record in support of their respective statements. The record before us gives no indication that the point was ever presented to the district court. We recently considered a very similar situation in Leeper v. Herz, 64 Nev. 497, 184 P.2d 1006. We refer to that opinion and re-affirm what we there said, in full explanation of why we refuse to consider the point thus presented, for the first time, in appellants' opening brief on appeal.

Appellants' second assignment of error is that the trial court erred in not holding that respondent's cause of action was barred by reason of the fact that its action to foreclose the same was not commenced within six months after the filing of the lien, pursuant to the provisions of N.C.L. sec. 3742, which reads in part as follows: ' § 3742. Limitation Of Lien As To Time. § 8. No lien provided for in this chapter binds any building, mining claim, improvement, or structure for a longer period than six months after the same has been filed, unless proceedings be commenced in a proper court within that time to enforce the same; * * *.'

Consideration must also be given to sec. 3749, N.C.L. reading in part as follows: ' § 3749. Action On Lien.--Trial Of.--Sale Of Premises.--Justice Courts. § 15. Said liens may be enforced by an action in any court of competent jurisdiction, on setting out in the complaint the particulars of the demand, with a description of the premises to be charged with the lien; and at the time of filing the complaint and issuing the summons the plaintiff shall cause a notice to be published * * * notifying all persons holding or claiming liens under the provisions of this act on said premises, to be and appear before said court * * *.'

Respondent filed its lien for record in the office of the county recorder of Clark County, Nevada, September 22, 1947. Under N.C.L. sec. 3742, supra, such lien did not bind the premises beyond March 22, 1948, unless, not later than that date, proceedings were commenced in a proper court to enforce the same. The 'proceedings' there referred to mean, without doubt, the commencement of an...