MYERSON et al.
SAKRISON et al
Rehearing Denied March 18, 1952.
Modified and remanded with directions.
James Elliott Dunseath, of Tucson; Snell & Wilmer, and Edward Jacobson, of Phoenix, for appellants.
D. Kelly Turner, of Phoenix, for appellee.
H. S. McCluskey, of Phoenix, amicus curiae.
Blake, Superior Court Judge. Udall, C. J., and Stanford, Phelps and La Prade, JJ., concurring. Note: Justice EVO DE CONCINI, being disqualified, the Honorable BENJAMIN BLAKE, Judge of Superior Court of Graham County, was called to sit in his stead.
Blake, Superior Court
[73 Ariz. 309] This is an action involving the priority of a lien, authorized by the Employment Security Act of Arizona, on the real property of a delinquent employer as against a prior recorded realty mortgage of a third person. This appeal comes to this court on an agreed statement of facts, pursuant to Section 21-1830, A.C.A.1939.
Hector C. Amado, the maker of a note and mortgage being in default, action was brought in the Superior Court of Pima County by the assignees (appellants) to secure judgment on the note and foreclose the mortgage. The Employment Security Commission was joined as a party defendant. The court first held that the appellants' realty mortgage was superior to the commission's lien but a new trial was granted and the court held that by the provisions of Section 56-1014h, A.C.A.1939, as amended, the commission's lien was prior and superior to the mortgage.
This appeal is taken from that portion of the judgment only, which found the commission's lien prior in right and superior to the mortgage lien of the appellants.
The following is a brief statement of the facts:
Hector C. Amado was an employer within the terms of the Employment Security Act, and was in default for contributions for the quarters ending September 30th and December 31st, 1946, and March 31st and June 30th, 1947.
On the 6th day of October, 1947, the commission recorded a notice of lien for the amount of the delinquent contribution, in the sum of $ 263.95, setting forth that a lien was claimed on all the property of Amado and particularly the real estate described as lot 7, block 5, University Home Addition, Tucson, Arizona, and setting forth that the lien claimed, dated from the 15th day of August, 1946.
On the 12th day of September, 1947, Amado and his wife, ...