The opinion of the court was delivered by
— On July 6, 1902, G. E. Marks, being then the owner of a certain tract of land situate in the city of Spokane, conveyed the same by a warranty deed, for a valuable consideration, to Ollie J. Pence; agreeing to complete a house then being constructed thereon according to plans and specifications agreed upon between the parties. The house was completed by Marks according to the agreement, but he neglected and refused to pay for certain materials used in its construction, furnished by the "Washington Mill Company. The mill company filed a lien on the property for the value of the materials furnished, which they afterwards foreclosed; obtaining a judgment and decree “that plaintiff have and recover a personal judgment against the defendant, G. E. Marks, for the sum of five hundred forty-three (543) dollars, seventy-five (75) dollars attorney’s fees, and eleven and 30-100 (11.30) dollars costs and disbursements herein; that plaintiff has a first, valid, and subsisting lien upon the following described real estate, situate in Spokane county, state of Washington, to wit [describing it], for said several sums; that said lien be, and is hereby, foreclosed, that
The appellant contends that the judgment creditor, who has obtained a judgment of foreclosure of a mechanic’s lien, and a personal judgment against the party personally liable, in the same proceeding, cannot in the first instance issue a general execution on his personal judgment, and seize and sell thereunder the judgment debtor’s property, but that he must first sell the property upon which it is adjudged he has a lien under a special execution, credit the proceeds thereof on his judgment, and issue a general
“Sec. 12. In every case in which different liens are-claimed against the same property, the court, in the judgment, must declare the rank of such lien or class of liens, which shall be in the following order: 1. All persons performing labor. 2. All persons furnishing material. 3. The subcontractors. 4. The original contractors. And the proceeds of the sale of the property must be applied to each lien or class of liens in the order of its rank; and personal judgment may be rendered in an action brought to foreclose a lien, against any party personally liable for any debt for which the lien is claimed, and if the lien be established, the judgment shall provide for the enforcement thereof upon the property liable as in case of foreclosure* of mortgages; and the amount realized by such enforcement of the lien shall be credited upon the proper personal judgment, and the deficiency, if any remaining unsatisfied, shall stand as a personal judgment, and may be collected by execution against the party liable therefor. The court-may allow, as part of the costs of the action, the moneys paid for filing or recording the claim, and a reasonable attorney’s fee in the superior and supreme courts.”
This section unquestionably authorizes a personal judgment against the party personally liable for the debt for which the lien is claimed whether the lien be established or-not, and if the lien be not established execution could issue-thereon and be levied upon any property of the judgment debtor not exempt by law from execution. A different' procedure, however, seems to be intended if the lien be established. It will be noticed that the statute provides that if the lien be established the judgment shall provide for its enforcement as in case of foreclosure of mortgages, and the-
The judgment appealed from is reversed, and the cause remanded, with instructions to enter a judgment in favor of the appellant setting aside the sale of the property, and freeing it from the cloud created thereby.
AIount, Dunbar and Anders, JJ., concur.