WARD et al.
INDUSTRIAL COMMISSION OF STATE OF ARIZONA, etc
Judgment reversed with instructions.
Walton & Walton, of Phoenix, Richey & Herring, of Douglas, Beumler & Beumler, of Douglas, for appellants.
Donald J. Morgan, Phoenix (H. S. McCluskey and Robert E. Yount, Phoenix, of counsel), for appellee, Industrial Commission of Arizona.
Phelps, Justice. La Prade, C. J., and Udall, Stanford and De Concini, JJ., concur.
[70 Ariz. 272] This case comes to us on an agreed statement of facts to the effect that appellant Ward and others brought several separate causes of action in the Superior Court of Cochise County against Southwestern Mines, Inc., a corporation, and others, who claimed some right, title or interest in certain mining claims owned by the Southwestern Mines, Inc., and the Leadville Mining [70 Ariz. 273] Company, seeking to foreclose certain labor and materialmen's liens against said claims. The Industrial Commission of Arizona was made a party defendant. It answered, setting up its lien under the provisions of section 56-948, A.C.A.1939, for unpaid premiums on compensation insurance covering the workmen engaged as laborers in the mining operation involved. It alleged statutory priority and joined in the prayer for foreclosure.
The various causes of action were consolidated for trial in the superior court.
The question presented to the trial court was: Which of the various liens being
foreclosed were entitled to priority and in what order must they be paid? Those portions of the findings and judgment of the trial court from which an appeal has been prosecuted to this court are as follows:
"That the lien of the Industrial Commission of the State of Arizona, is prior to all other liens except taxes, prior recorded realty mortgages and labor liens created by Section 62-209, A.C.A.1939, as aforesaid; that the lien claimed by the Industrial Commission of the State of Arizona is created in Section 56-948, A.C.A.1939; this section of the statutes being later in time and being in apparent conflict with the provisions of Section 62-209, A.C.A.1939, relating to materialmen, furnishing material and merchandise to be used in or upon a mining claim; the Court therefore finds that the provisions of Section 62-209, relating to the priority of liens given to those furnishing merchandise or material to be used in and upon a mining claim, is amended and/or repealed by implication in Section 56-948, A.C.A.1939. The Court therefore finds that the claims of lien of those furnishing merchandise and material to the defendant, Southwestern Mines, Inc., a corporation, to be used in and upon mining claims of said defendant, are inferior to the lien hereby given the Industrial Commission of the State of Arizona."
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"7. That the Industrial Commission of the state of Arizona, have judgment against the defendant, Southwestern Mines, Inc., in the sum of $ 2,141.89, which is a lien for unpaid wage insurance premiums and is next in priority to the labor claims numbered 1 to 6 above and subject only to the payment of taxes, which may be ...