The Pacific commercial advertiser., 1893-04-27
OPINION OF THE COURT BIZ COOPER, j.

OPINION OF THE COURT By COOPER, J.
On the 18th day of January, 1892,
Geo. Lucas. plaintiffs testator, re-
covered judgment against f. II.
Redward in the Police Court OF
Honolulu for the sum of 17.16,
being $29875 damage and $18.4
costs, from which judgment defend
ant appealed to the Supreme Court.
This appeal was withdrawn on the
Doth day of July, 1892.
Upon affidavit of PLAINTIFF counsel
an order was issued on the 9th day
of December, 1892, attaching all debts
due or accruing from A. j. Lopez to
F. 81. Redward. After Gearing the
case on an order to show cause, the
Chief Justice on the Oath day OF
December, 1892, rendered his deci-
sion in which he found that cat the
date of the service of the order on
Lopez, December 7th, he owed Red
ward the sum of $1491.OO, and. is
liable as garpishee to the Lucas
estate for the amount of the judg-
ment against Redward, and it is 80
ordered"
The amount due from Lopez to
Redward was on account of build
ing contract.
On the Sd day of January, 1893,
Lopez fled a motion to reopen the
cause and alleged. that on the 30th
day of December, 1892, s. G. Allen,
material man, had filed lien on the
building for the sum of S1885. 20, and
that he is informed and believes that
if he complies with the order of the
Court and pays the amount of the
Lucas Judgment he will also be OBJ
liged to pay the amount of the Allen
claim without deducting the sum
paid to the plaintiff. The motion
was heard before Chief Justice Judd,
and on the 8th day of February, 1893,
the decision, refusing to re open, was
. fled in which Is was stated that "the
order to the garnishee was judg-
ment against him it was rendered
six days before the filing of the ma
terial mans lien, and is prior in time
and in right" It is from this de-
cision that the appeal of Lopez is
taken.
The garnishee in his motion to re-
open admits that he is owing to
Redward the sum of $149I, and was
so on the seventh day of December
when the order of attachment was
served upon him, but contends that
the material mans lien has priority
over the judgment against the gar.
nishee, although filed on day sub.
sequent.
The statute which gives the mate.
rial man his lien is so radically diff.
ferent from other laws on the same
subject, that we can derive but little
assistance from the decisions founded
upon them.
The salient points of our statute
Session Laws of 1883, Chapter
XXI, bearing upon the question
before the Court are as fol
lows: Section 1.-"Any person OF
association of persons furnishing
labor or material to be used in the
construction Or repair of any build
ing = shall have a lien fol
the price agreed to be paid for suct
labor or material upon such build
ing" Section 2.-"The lien pro
vided in the first section hereof shall
not attach unless a notice thereo
shall be fled in writing in the Office
of the Clerk of the Circuit or Su
preme Court" & Section 4
The lien herein provided shall
have force only from date Of filing. I
shall have priority in the order o.
filing over other liens of any nature
and shall be subject to any prior re
corded lien or judgment"
1t is contended on the part of th'
garnishee that the lien exists from
the date the materials were fur
nished, and that upon filing the no
tice required in Section 2, that &C
for the purpose of determining pr
critics relates back to the first trans
action. This, in our opinion, canno
be maintained.
a statute creating a mechanic
lien is IN derogation of the commo
law, and must be strictly construed
and all the provisions of the statut
must be strictly complied with.
Bottomly VS.. Grace Church, Cal
80.
Walker VS.. Hauss, Hijo ct al,
CAL, 1S4.
1t seems to US that the statut
must be construed as giving the rigl
of lien upon the performance of ce
tain conditions, and that it is essel
tial that they be complied with befol
the lien given shall have any effec
A man may have right of attac
ment against his debtor, but the rigl
does not attach unless the writ
duly issued and served in accordan
with law. If il was as contended, Il
man who furnished the foundatit
of the building would always ha
the prior right even if he was Il
last to file his notice because he W
the first to furnish material.
1t seems clear to us that under o
statute the lien does not attach. j.
does not exist unless the notice
fled. The lien shall have force on
from the date of filing: it is call
into existence by the fling of the !
tice; before this it had no force
effect and was not binding upon q
one.