Pleadings in civil cases are not mere matters of form, but are the foundation of the action and basis of jurisdiction, and intended and required to inform the adverse or interested parties of the real cause of action and to frame and present the issues to be decided by the court. The caption of plaintiff's complaint contains the names of certain parties as defendants, but does not name or purport to name the interveners as parties to the action. And the interveners are nowhere mentioned in plaintiff's complaint.
The mere fact that appellants intervened in this action in an endeavor to protect their title to the property from being clouded does not justify the entering of a personal judgment against them without pleadings or proof to sustain it. Hume v. Robinson et al. (Colo.), 47 P. 271.
It is respectfully submitted that it is not sufficient to sustain respondent's claim of penalty, for respondent to make a broad and loose statement in his complaint that there is due and owing him $504 for twenty-eight days *Page 176 as a penalty pursuant to section 2785 N.C.L. This is a rank conclusion of law. The complaint does not allege employment of respondent by appellants, does not allege any demand on appellants, and does not allege any wages due respondent from appellants. Bowers v. Charleston Hill Nat. Mines, Inc., 50 Nev. 99,256 P. 1058; Fenn v. Latour Creek R. Co. et al. (Ida.), 160 P. 941.
The evidence expressly negatives any relationship of employer and employee as between the appellants and respondent. It is the contention of the plaintiff that when the complaint of plaintiff in its entirety and the interveners' complaint and answer in their entirety are considered together to determine the issues made by the pleadings in this action, the complaint of plaintiff states a cause of action against interveners for a personal judgment, because, as stated in the decision of this court: "The pleading in a mechanic's lien case should be liberally construed." See, also, Thomas v. Palmer, 49 Nev. 438,248 P. 887; sections 3749 and 8797 N.C.L.; Mariner v. Milisich,45 Nev. 193, 200 P. 478; Hawthorne v. Smith, 3 Nev. 182; Keyes v. Nevada Gas Co., 55 Nev. 431, 38 P.2d 661; Johnston v. Rosaschi, 44 Nev. 386, 194 P. 1063; Reiner v. Schroder (Cal.),80 P. 517.
We maintain that both the pleadings and the facts in this case bring it squarely within the law as announced in the case of Verdi Lumber Co. v. Bartlett, 40 Nev. 317, 161 P. 933.
Under the statutes and facts in this case, the respondent is in the same position as if he had actually worked the extra twenty-eight days' penalty period, in connection with the other work performed, and has a lien on the mining claims for it, the same as the lien for the other work performed. 40 C.J. p. 134, sec. 146; Macomber v. Bigelow (Cal.), 58 P. 312; Christman v. *Page 177 Salway et al. (Ore.), 205 P. 541; First Nat. Bank of St. Augustine v. Kirkby (Fla.), 32 So. 881. OPINION A rehearing was granted in this case limited to a consideration of the following questions: (1) Does the plaintiff's complaint state a cause of action against interveners for a personal judgment? (2) Can the judgment for a penalty under section 2785 N.C.L. be sustained?
We have concluded that both questions must be answered in the negative. We will continue to designate appellants as interveners.
As will be seen by referring to our original opinion, Milner et al. v. Shuey, 57 Nev. 159, 60 P.2d 604, this action is for the foreclosure of a mechanic's lien for labor performed and materials furnished by the respondent, George Shuey, and penalty pursuant to statute. So far as pertinent to the questions stated, the complaint alleged that between certain dates in 1932 in Elko County, Nevada, at the special instance and request of defendants Dexter-Tuscarora Mines Company, a corporation, and L.W. Hagg and several others doing business under the firm name and style of Independence Gold Syndicate, and for their use and benefit, the said plaintiff performed work and labor, and sold, furnished, and delivered materials and supplies for defendants, about, in, and upon those certain lode mining claims in the county of Elko, State of Nevada (describing them). That there is due and owning from defendants to this plaintiff the sum of $504 for 28 working days, in addition to the said sum of $1,285.50, as a penalty pursuant to, and in accordance with the provisions of chapter 71, page 121, Statutes of Nevada 1919, as amended by chapter 129, page 226, Statutes of *Page 178 Nevada 1925 (N.C.L. sec. 2785), no part of which has been paid.
1. That at the time the said work and labor were performed, and caused to be performed, and the said materials and supplies were furnished and delivered, in and upon said lode mining claims, said defendants were the owners and reputed owners of said real property, consisting of the said lode mining claims. The perfecting of a lien is alleged. In addition to the sums claimed being adjudged a lien against the property, execution for any deficiency was prayed for. As stated in the original opinion, the respondent was permitted to file an amended claim for lien substituting Dexter-Tuscarora Consolidated Gold Mines Company, a corporation, as the owner of the property, for the two mining companies named in the original claim of lien. At the same time the court ordered notice to issue to the corporation directing it to appear in the action, as provided by law. Thereafter, Jay S. Milner, George E. Airis, and George H. Dern, as trustees for and on behalf of the stockholders and creditors of the company so substituted, filed their complaint in intervention. The case was tried upon the issues made upon the pleadings of respondent and interveners and upon an agreed statement of facts. The complaint furnishes no basis for the personal judgment rendered by the trial court against interveners. They are not made defendants in the complaint or mentioned therein. In fact, it is obvious that the only causes of action intended are as alleged against the said defendants. The failure of the complaint in this respect cannot be disputed, but it is earnestly insisted that the complaint in intervention sufficiently aids respondent's complaint so that the pleadings support the personal judgment against interveners. This contention goes beyond the question of the sufficiency of the complaint in this regard, to which the rehearing was limited on this phase of the case. However, there is no merit in the claim. Nowhere in the latter complaint is there an *Page 179 allegation importing personal liability to interveners.
2. It is insisted that the allegations in the complaint in intervention concerning the lease between Hagg and interveners supplies a basis for such liability. We do not think so. These allegations are set out in our original opinion. It will be seen by a reference thereto, page 605, of 60 P.2d, that no contractual relation between respondent and interveners with reference to the labor and materials appears therein. That such a relation is essential to establish a personal liability against the owner of the property in addition to a judgment foreclosing a lien is elementary. Harbridge v. Six Points Lumber Co., 17 Ariz. 339,152 P. 860; 18 R.C.L. 992; State v. Breen, 41 Nev. 516, 522,173 P. 555, 556. It is also a statutory requirement. Section 3749 N.C.L. As to this, the statute reads:
"* * * and each party whose claim is not satisfied in the manner hereinbefore provided for [by lien claim and enforcement], shall have personal judgment for the residue against the party legally liable for the same; provided, such person has been personally summoned or has appeared in the action. * * *"
In State v. Breen, this court said:
"By the greater weight of authority, we are of the opinion that a personal judgment may be rendered against a person personally liable in an action brought to enforce a mechanic's lien (18 R.C.L. 991), provided the complaint contains all the necessary facts constituting both grounds for relief and all the necessary allegations of an action in assumpsit."
Volker-Scowcroft Lumber Co. v. Vance, 36 Utah, 348,103 P. 970, 971, 24 L.R.A. (N.S.) 321, Ann. Cas. 1912A, 124.
As pointed out, neither the complaint nor the complaint in intervention, by which the issues were framed, contain such necessary allegations. The granting to Hagg by interveners of the lease and option to purchase with the right to operate the property in consideration *Page 180 of the payment of certain royalties upon any mineral extracted, as alleged, did not constitute Hagg interveners' agent to employ labor and purchase materials to carry on such operations. Consequently no contractual relation was thus established.
Respondent refers to section 3735 N.C.L. which in part provides:
"* * * and every contractor, subcontractor, architect, builder, or other persons, having charge or control of any mining claim, or any part thereof, or of the construction, alteration, or repair, either in whole or in part, of any building or other improvement, as aforesaid, shall be held to be the agent of the owner, for the purposes of this chapter."
The statutory agency thus created is for the purpose of securing liens and not personal liabilities.
The case of Verdi Lumber Co. v. Bartlett, 40 Nev. 317,161 P. 933, cited by respondent, holds nothing to the contrary. The question of personal liability was not involved in that case. Respondent asserts that the evidence discloses such an active duty imposed upon Hagg by the terms of the lease and option, in working the property, as to constitute him the actual agent of interveners. This contention also goes beyond the question to which the rehearing was limited, but, if the contention were conceded, it would be unavailing, because such an agency has no support in the pleadings.
3. On the original hearing interveners contended that neither the respondent's complaint, nor the record, supported a judgment for a penalty under section 2785 N.C.L. We held against them on both branches of the contention. We are satisfied with our opinion as to the first point, but are persuaded that we fell into error in giving effect to the evidence as to that part of the complaint. The evidence fails to show that interveners were the employers of respondent, the lien claimant. The penalty may be exacted by an employee only from an employer. Chapter 139, Stats. 1925, p. 226; 2785 N.C.L.; Eldorado-Rand Mining Co. v. Thompson (57 *Page 181 Nev.), 65 P.2d 878; Fenn v. Latour Creek R. Co.,29 Idaho, 521, 160 P. 941.
The following appears in the agreed statement of facts:
"That the said L.W. Hagg employed plaintiff to work on said mining premises described in plaintiff's complaint filed herein, and he was not employed by the said interveners or the said Dexter-Tuscarora Consolidated Gold Mines Company."
The said lease and option are made a part of the agreed statement of facts, and our considered judgment is that it does not show an agreement by which Hagg became the agent of the interveners.
The judgment is further modified to give no sum as a penalty, nor personal judgment against interveners.
The judgment as so modified, and order denying the motion for a new trial are hereby affirmed.