| Cal. | Jul 1, 1856
Mr. Justice Terry concurred.
This cause has been re-submitted to us for the purpose of obtaining our opinion upon a point, which will be decisive of the whole subject matter of the controversy.
The question presented is, whether the garnishment served upon the owners of the building, before the notices by the sub-contractors, journeymen, etc., becomes a lien upon the fund in the hands of the owner, and takes precedence of the claims of sub-contractors.
The statute was designed for two classes of laborers and contractors ; first, master builders, mechanics, lumber merchants, and all other persons furnishing labor or materials, by contract with the owner of the building himself; and second, sub-contractors, journeymen, etc., performing labor, or furnishing materials by contract, with the master builders or contractors, and between whom and the owner there is no privity of contract whatever. It frequently happens, that persons in building or repairing houses, wharves, etc., prefer to supervise the labor themselves, and in such eases, those engaged in the construction of, or the furnishing of materials, have, by the first section of the Act, a lien on.the building, by filing a notice thereof at any time within sixty days after its completion.
The second class, those employed by the master builders, or who contract with or under the first contractors, are provided for by the second, third, and fourth sections of the Act. They look first to their employer, and next to the owner of the building, who is not responsible to them, except in case of notice served in conformity with the statute. As to the time in which notice shall be served, the law is silent. If they are to be allowed sixty days after the completion of the building to serve such notice on the owner, it will not unfrequently occur, that he will be subjected to pay the same amount twice; as it will be impossible for
We are of opinion, that the statute intended to provide an actual lien, existing from the commencement of the work until sixty days after its completion, for those enumerated in the first section; leaving all others their remedy by notice to the owner; and no time being fixed when such notice shall be given, that their lien attaches only upon the service thereof; that this mode of procedure was intended to prevent litigation, by substituting a proceeding in the nature of an attachment or garnishment ; and this class of cases is put upon the same footing as ordinary attachments in which the rule, qui prior est in tempore, potior est in jure, prevails.
Judgment reversed.