B. CAHOON et al. v. T. S. LEVY et al. Proceedings against ISAAC NATHAN, Garnishee in said Cause

B. CAHOON et al. v. T. S. LEVY et al. Proceedings against ISAAC NATHAN, Garnishee in said Cause. Gabnishee, Answer oe. — Unless the answer of the garnishee disclose liens having priority of claim upon the fund in his hands, an order for a bill of interpleader will not be granted. Appeal from the Sixth Judicial District. The answer of the garnishee stated that he and Levy had entered into a contract that Levy should put up a building on Nathan’s lot for the sum of $4,400. The contract was thrown up by Levy, and he authorized Nathan to complete the bouse, which the latter did. Nathan answered that, according to the terms of the contract, he should owe $2,195 75, to be paid over at the times specified in said contract. Upon the coming in of the answer, the plaintiffs moved for a judgment against Nathan to pay them the amount due from him to said defendants, as stated in his answer. The Court overruled the motion, on the ground that the sub-contractors, journeymen and laborers, who were employed upon the building, had a prior lien on the balance due from Nathan *to Levy, and ordered that Nathan have leave to file a bill of interpleader in relation to the matter in controversy. Plaintiffs appealed. This case, as well as same case, reported in 6 Cal. 295. Construed in same case, 10 Cal. 216. [MAJORITY — Mr. J. Heydeneeldt] Mr. J. Heydeneeldt delivered the opinion of the Court. Mr. Ch. J. Murray concurred. The answer of the garnishee does not disclose that there are any liens upon the building having priority of claim upon the fund in the hands of the garnishee. The District Court erred, therefore, in presuming' the existence of such claims. The order for a bill of interpleader is reversed, and the Court below is directed to enter judgment in conformity with the liability of the garnishee upon his answer.