served personally, need be but once a week for four successive weeks. Vide § 1196 and note. § 1192. All persons entitled to liens on the structure or improvement, except those who contracted with the owner thereof, are sub-contractors; and the court, in the judgment, must direct the amount due sub-contractors to be paid out of the proceeds of sales before any part of such proceeds are paid to the contractor. Vide § 1196 and note. 1193. The court may also allow as part of the costs, the moneys paid for filing and recording the lien and a reasonable attorney's fee in the district and supreme court. Vide & 1196 and note. § 1194. In every case in which different liens are asserted against property, the court in the judgment must declare the rank of each lien or class of liens, 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. Vide § 1196 and note. § 1195. Whenever, on the sale of the property subject to the lien, there is a deficiency of proceeds, judgment may be docketed for the deficiency in like manner and with like effect as in actions for the foreclosure of mortgages, Vide § 1196 and note. 1196. Any number of persons claiming liens may join in the same action, and when separate actions are commenced the court may consolidate them. Stat. 1867-68, 539, § 10 read: "First-Suits to enforce the liens created by this act, except those under section fi teen, shall be brought in the district courts; and the pleadings, process, practice and oder proceedings shall be the same as in other cises; provided, that where service of summons may be made under the Practice Act by publication, the time of publication, where the defendant resides out of, or is absent from, the state, or for any other cause, can not be personally served, need be but once a week for four successive weeks, and the time for answering shall expire when such publication is complete, and if no answer of such defendant is then fi'ed, h's default may be entered: and, provided, that the court may, in its discretion, in all cases under this act, instead of ordering publication, or may after publication, appoint an attorney to appear for the non-resident, absent, or concealed defendant, and conduct the proceedings on his part. Second-In case the proceeds of any sale under this act shall be insufficient to pay all lien-holders under it, the liens of all persons other than the original contractor, and sub-contractors, shall first be paid in full, or pro rata, i. the proceeds be insufficient to pay them in full; and out of the remainder, if any, the sub-contractors shall then be paid in full or pro rata, if the remainder be insufficient to pay them in full; and the remainder, if any, shall be paid to the original contractor; and each claimant shall be entitled to execution for any balance due him after such distribution, such execution to be issued by the clerk of the court upon demand, after the return of the sheriff or other officer making the sale showing such balance due. Third-In all suits under this act the court shall, upon entering judgment for the plaintiff, allow as a part of the costs, all moneys paid for the filing and recording of the lien, and also a reasonable amount as attorney's fees. "Fourth-All suits, to enforce liens created by this act, shall have preference upon the calendar of the court over any civil suit already brought or to be brought, except suits to which the state shall be a party, and shall be tried by such court without unnecessary delay. "Fifth-In all suits to enforce any lien created by this act, all persons personally liable, and all lien-holders whose claims have been filed for record under the provisions of section five of this act, shall, and all other persons interested in the matter in controversy, or in the property sought to be charged with the lien, may be made parties; but such as are not made parties shall not be bound by such proceedings.' 33 Cal. 497. 1197. Nothing contained in this chapter can be construed to impair or affect the right of any person to whom any debt may be due for work done or materials furnished to maintain a personal action to recover such debt against the person liable therefor; and the person bringing such personal action may take out an attachment therefor, notwithstanding his lien, and in his affidavit to procure an attachment, need not state that his demand is not secured by a lien; but the judgment, if any obtained by the plaintiff in such personal action, cannot be construed to impair or merge any lien held by plaintiff under this chapter. Stat. 1867-69, 589, § 13, added the words, "provided, only that any money collected on said judgment shall be credited on the amount claimed under such lien in any action brought to enforce the same, in accordance with the provisions of this act.' 16 Cal. 142. § 1198. Except as otherwise provided in this chapter, the provisions of Part II of this code are applicable to and constitute the rules of practice in the proceedings mentioned in this chapter. Vide § 1196 and note. 1199. The provisions of Part II of this code relative to new trials and appeals, except in so far as they are inconsistent with the provisions of this chapter, apply to the proceedings mentioned in this chapter. CHAPTER III. CERTAIN LIENS FOR SALARIES AND WAGES. SECTION 1204. Certain persons preferred creditors when assignment of property is made. 1205. Same, against estates. 1206. Same, in cases of execution or attachment. § 1204. In all assignments of property, made by any person to trustees or assignees, on account of the inability of the person, at the time of the assignment, to pay his debts, or in proceedings in insolvency, the wages of the miners, mechanics, salesmen, servants, clerks or laborers, employed by such person, to the amount of one hundred dollars, and for services rendered within sixty days, are preferred claims, and must be paid by such trustees or assignees before any other creditor or creditors of the assignor. Stat. 1867-68, 213, § 1, substantially the same, but inserted the words "whether real or personal, which shall hereafter be," between "property" and "made;.' also the words "or chartered company, or corporation, or by any person or persons owning or leasing real or personal property," between "person" and "to trustees;" also "forty" instead of "sixty;" also the words "gold coin of the U. S." after dollars. § 1205. In case of the death of any employer, the wages of each miner, mechanic, salesman, clerk, servant and laborer, for services rendered within the forty days next preceding the death of the employer, not exceeding one hundred dollars, rank in priority next after the funeral expenses, expenses of the last sickness, the charges and expenses of administering upon the estate, and the allowance to the widow and infant children, and must be paid before other claims against the estate of the deceased person. Vide § 1643. Stat. 1867-68, 2'3. § 2, substantially the same, but inserted "gold coin of the U.S." after "dollars:" also "prorata" between "paid" and "before;" also "alt" before "other claims;" also added the words: "Provided, this act shall in no way affect the homestead or other property exempted by law from forced sale in payment of debts, or any mortgage or lien lawfully obtained on the property of the deceased before his death." Ø 1206. In cases of executions, attachments, and writs of a similar nature, issued against any person, miners, mechanics, salesmen, servants, clerks and laborers, who have claims against the defendant for labor done, may give notice of their claim, and the amount thereof, sworn to by the person making the claim, to the officer executing either of such writs, at any time before the actual sale of property levied on; and such officers must pay to such persons, out of the proceeds of the sale, the amount cach is entitled to receive for services rendered within the forty days next preceding the levy of the writ, not exceeding one hundred dollars. If any or all of the claims so presented, and claiming preference under this section, are disputed by either the debtor or creditor, the person presenting the same must commence an action within ten days for the recovery thereof, and must prosecute his action with due diligence, or be forever barred from any claim of priority of payment thereof; but in case action is rendered necessary by the act of either debtor or creditor, and judgment be had for the claim, or any part thereof, carrying costs, the costs taxable therein are likewise a preferred claim, with the same rank as the original claim. Vide § 163. Stat. 186-68, 213, § 3, substantially the same, but inserted the words "or persons, or chartered company or corporation, it shall be lawful for such" between "person" and "miner; also omitted the words "who have claims against the defendant for labor done;" also inserted "duly certified to and" between thereof" and "sworn to;" also "creditor or creditors making the claim" instead of "person making the claim;" also "gold coin of the U. S." after "dollars;" "also added the words: "And provided, further, if the amount of the assets. after deducting costs of levy and sale, shall not be adequate to the payment of all the preferred claims of this class, they shall be paid pro rata out of the fund hereby made applicable thereto; and provided, further, that nothing in this act contained shall be construed to affect any homestead claims, mortgage or licn of any description, created or existing before the claim of such laborer accrued." SECTION 1209. 1210. TITLE V. OF CONTEMPTS. What acts or omissions are contempts.. Re-entry on property after eviction, when a contempt. 1211. A contempt committed in the presence of the court may be punished summarily. When not so committed, an affidavit or statement shall be made. 1212. A warrant of attachment may issue or a notice to show cause. 1213. Bail may be given by a person arrested under such warrant. 1214. Sheriff must, upon executing the warrant, arrest and detain the person until discharged. 1215. Bail boud, form and conditions of. 1216. Officer must return warrant and undertaking, if any. 1217. Hearing. 1218. Judgment and penalty, if guilty. 1219. If the contempt is the omission to perform any act, the person may be imprisoned until performance. 1220. If a party fail to appear, proceedings. 1221. Ilness sufficient cause for non-appearance of party arrested. Confinement under arrests for contempt. 1222. Judgment and orders in such cases final. § 1209. (§ 4 ́0.) The following acts or omissions, in respect to a court of justice, or proceedings therein, are contempts of the authority of the court: 1. Disorderly, contemptuous or insolent behaviour toward the judge while holding the court, tending to interrupt the due course of a trial or other judicial proceeding. 2. A breach of the peace, boisterous conduct or violent disturbance, tending to interrupt the due course of a trial or other judicial proceeding. 3. Misbehaviour in office, or other wilful neglect or violation of duty by an attorney, counsel, clerk, sheriff, coroner or other person appointed or elected to perform a judicial or ministerial service. 4. Deceit or abuse of the process or proceedings of the court by a party to an action or special proceeding. |