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Leeson v. Bartol

Supreme Court of Arizona

February 26, 1940

ROBERT V. LEESON and OLLIE G. LEESON, His Wife, and FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF PHOENIX, a Corporation, Appellants,
v.
W. T. BARTOL, Doing Business as UNION ROCK COMPANY, and ARIZONA SASH, DOOR AND GLASS COMPANY, a Corporation, Appellees

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.

Messrs. Hayes & Allee and Messrs. Armstrong, Kramer, Morrison, Roche & Duffy, for Appellants.

Messrs. Gust, Rosenfeld, Divelbess, Robinette & Coolidge, for Appellee W. T. Bartol; and Mr. A. S. Gibbons, for Appellee Arizona Sash, Door and Glasss Company.

OPINION

Page 486

[55 Ariz. 162] ROSS, C.J.

This is an action to foreclose materialmen's liens and the only question is as to whether the liens were perfected within the time and in the manner provided by the statutes.

On June 28, 1937, C. D. Bradley entered into a contract with Robert V. Leeson and Ollie G. Leeson, his wife, to build for them on Lot 6, Stanley Place, Maricopa county, a dwelling house and garage, furnishing all material and labor, for the sum of $8,300. On November 25, 1937, the Leesons moved into the premises, at which time they claim the dwelling and garage were completed.

Page 487

W. T. Bartol, doing business as Union Rock Company, on June 8, 1938, filed with the county recorder a notice and claim of lien on the premises for $123.93 for material furnished the contractor and used in the buildings. Later, on June 29, 1938, he filed another notice in the same words except there was added thereto the name of the wife as one of the owners, or reputed owners. These materials, it is shown, were furnished between July 6, 1937, and August 4, 1937.

[55 Ariz. 163] The Arizona Sash, Door and Glass Company, on June 18, 1938, filed with the county recorder its notice and claim of lien on the same premises for $933.59 for material furnished the contractor between August 24 and November 27, 1937, and used in the buildings.

July 25, 1938, Bartol filed his suit to foreclose lien and therein made contractor Bradley, the Leesons, the Arizona Sash, Door and Glass Company and the First Federal Savings and Loan Association of Phoenix (mortgage lienholder) defendants. Bradley did not appear or answer, but defaulted. The Arizona Sash, Door and Glass Company filed an answer setting up its claim of lien and asked that it be foreclosed. The Leesons and the Loan Association, among other things, alleged in their answer that the so-called liens were not filed with the county recorder within sixty days from completion of improvements and denied that they were ever served with duplicate copies of the liens.

The court, sitting without a jury, heard the evidence and rendered judgment in favor of the lien claimants. The Leesons and the First Federal Savings and Loan Association of Phoenix, have appealed, and as grounds therefor insist the liens were not perfected within the time and in the manner provided by law.

Section 2021, Revised Code of 1928, gives an original contractor ninety days, and every other person claiming a lien on a building, structure, or improvement sixty days after the completion thereof within which to perfect his lien. It provides, among other things, that the lien claimant

"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 [55 Ariz. 164] 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."

The appellee-lien claimants furnished material to Bradley, the original contractor, who, under the statute, is constituted the agent of the owners for the purposes of the lien law, section 2020, Id., so they fall within the class that must perfect their liens within sixty days after the completion of the dwelling and garage contracted to be constructed by Bradley. It is quite obvious that if these improvements were completed November 25, 1937, the liens claimed were not perfected within the sixty days allowed, since no steps were taken to file liens until June, 1938. But the lien claimants insist, and the trial court found, that the buildings were not completed until May 7, 1938, and if that is the correct date, liens filed in June, 1938, with the county recorder were in time.

Ordinarily we would accept without question the trial court's finding to the effect that the liens were perfected within the time allowed by law, but in Morgan v. O'Malley Lumber Co.,39 Ariz. 400, 7 P.2d 252, 253, we said "trifling adjustments or corrections . . . made long after the expiration period" would not extend the time for perfecting a materialman's lien, and the ...


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