American Coarse Gold Corp. v. Young

• Citation: 52 P.2d 1181,46 Ariz. 511
• Decision Date: 23 December 1935
• Docket Number: Civil 3603
• Parties: AMERICAN COARSE GOLD CORPORATION, a Corporation, Appellant, v. LAWRENCE YOUNG, Appellee
• Court: Arizona Supreme Court

52 P.2d 1181

46 Ariz. 511

AMERICAN COARSE GOLD CORPORATION, a Corporation, Appellant, v. LAWRENCE YOUNG, Appellee

Civil No. 3603

Supreme Court of Arizona

December 23, 1935

APPEAL from a judgment of the Superior Court of the County of Yuma. C. C. Faires, Judge. Judgment reversed and case remanded for new trial.

Mr. J Fred Hoover, for Appellant.

Mr. A J. Eddy and Mr. Bernard T. Caine, for Appellee.

OPINION

LOCKWOOD C.J.

This is an appeal from a judgment in favor of Lawrence Young, hereinafter called plaintiff, against American Coarse Gold Corporation, a corporation, hereinafter called defendant, for the sum of $983.64, and for the foreclosure of a mechanic's lien on certain property owned by defendant, in satisfaction of the judgment debt aforesaid. The assignments of error are as follows:

"1. That the proceedings were irregular;

"2. Accident and surprise which could not have been prevented by ordinary prudence;

"3. Errors in admission and rejection of evidence;

"4. That the decision is contrary to the law;

"5. That the decision is contrary to the evidence;

"6. That the motion for a new trial should have been granted."

These assignments are insufficient to raise any question for our consideration except that the decision is contrary to the evidence. Williams v. Williams, 37 Ariz. 176, 291 P. 993; Thornburg v. Frye, 44 Ariz. 282, 36 P.2d 548.We therefore confine our opinion to the assignment.

Upon an examination of the transcript, it appears there is ample evidence to support the judgment for debt as against defendant. When, however, it comes to the foreclosure of the mechanic's lien, the situation is very different. The requisites for a mechanic's lien of the nature which plaintiff seeks to enforce in this action are found in section 2021, Revised Code 1928, which reads as follows:

"Perfecting lien, Notice and Claim. In order to fix and secure the lien herein provided for, every original contractor, within ninety days, and every other person claiming the benefits of this article, within sixty days, after the completion of a building, structure or improvement or any alteration or repair thereof, must make duplicate copies of a notice and claim of lien and file one copy thereof with the county recorder of the county in which the property, or some part thereof, is situated, and within a reasonable time thereafter, serve upon the owner of said building, structure or improvement, if to be found within the county, the remaining copy. Such notice and claim of lien shall be made under oath by the claimant or some one with knowledge of the facts, and shall contain, a description of the lands and improvements to be charged with the lien, sufficient for identification; the name of the owner or reputed owner of the property concerned, if known, and the name of the person by whom the lienor was employed or to whom he furnished materials; a statement of the terms, time given and conditions of his contract, if the same be oral, or a copy of the contract, if written, and a statement of the lienor's demand, after deducting all just credits and offsets."

It is of course, necessary for the plaintiff to allege his compliance with the essential requirements of the statute and, if such compliance is denied, to prove it upon the trial by competent evidence. Among these essentials are the filing of the notice with the county recorder and the service of a "duplicate" copy of such notice upon the owner, if found within the county. Section 2021, supra; Steinfeld & Co. v. Allison Min. Co., 41 Ariz. 340, 18 P.2d 267. It will be noted that the statute...