Frank J. Duffy, of Phoenix, for appellant.
Kenneth C. Chatwin, of Phoenix, for appellee.
Stanford, Justice. Udall, C. J., and Phelps, De Concini, and La Prade, JJ., concurring.
[74 Ariz. 25] Appellee, R. A. Lavender, brought this action to foreclose and affix a mechanic's lien on the property of Anna Keefer, appellant. The lower court found the lien had not been perfected but entered a personal judgment against appellant. Appellant now appeals from that judgment.
Appellant contends the court did not have jurisdiction to render a personal judgment after it found there was no lien. Appellant cites Harbridge v. Six Points Lumber Co., 17 Ariz. 339, 152 P. 860, 863, from which we quote:
"* * * Nowhere in the chapter relating to the liens of mechanics, laborers, and others can be found any provision authorizing a personal judgment against the owner of the property, in the absence of a showing that there were contractual relations existing between the plaintiff and the defendant against whom the personal judgment is sought. There must be a contractual relation established between the owner of the property on which a lien is claimed and the lienor to support a personal judgment against the owner of the property in an action for the foreclosure of the lien. * * *" (Italics ours.)
Appellee argues that a contractual relationship was established and also cites the above-quoted portion of the Harbridge case, supra, to support his contention that the court had the requisite jurisdiction to enter a personal judgment in his favor. The issue for determination, therefore, is whether a contractual relationship has been established.
Appellee, an electrical contractor, was engaged by one W. M. Hoel, appellant's general contractor, to do certain electrical work on appellant's property. Appellee performed the work and submitted a statement to Hoel for payment. Hoel refused payment and after unsuccessful demands upon appellant, appellee filed a lien on the premises. Appellant claims she paid Hoel for the total cost of the job and that the amount due appellee was included in that total. The lower court found the lien was not perfected but gave appellee a personal judgment against appellant.
The rule laid down in 36 Am.Jur., Mechanics' Liens, Sec. 283, p. 172, adequately states the law on this issue:
"The great weight of authority seems to be to the effect that in an action to foreclose a mechanic's lien, a personal judgment may be rendered against a party to the action who is personally liable, in addition to a judgment foreclosing the lien. Although there are cases to the contrary, this is generally held true even where the lien fails. The right to such a judgment is dependent on a contractual relation being shown between the plaintiff and the defendant against whom the personal judgment is sought. ...