Appeal from the District Court of the Fifth Judicial District, County of Amador.

George W. Green brought suit to recover of the Jackson Water Company, a corporation doing business in the county of Amador, the sum of 11952 91-100, for labor, as civil engineer, performed in the construction of a certain water-race, ditch, or canal, in the county of Amador, and to enforce a laborer’s lien against the ditch for that amount. The labor was performed between the 11th day of July, 1855, and the 10th day of March, 1856. The lien was filed in the county recorder’s office of Amador county, on the 6th day of March, 1856. On the 30th day of October, 1856, plaintiff filed his complaint in the clerk's office of the District Court of that county, against the corporation, to enforce the lien, but no summons was issued thereon. On the 26th day of January, 1857, plaintiff filed an amended complaint, and summons was duly issued thereon and returned “served.” The defendants making no appearance in said cause, a default was taken before the clerk. At the next term of the Court, (February Term, 1857,) J. B. Bayerque, by leave of the Court, intervened in the action—averring, in his petition of intervention, that he is the owner and in possession of the property upon which the plaintiff claims a lien, and that plaintiff has no legal lien on the same. He further avers that plaintiff did not commence this suit, to enforce the lien, within six months after the filing his lien in the office of the county recorder.

After the close of the testimony of plaintiff, the intervenor’s counsel moved for a nonsuit, on the ground that this suit was not commenced within six months after the filing of the lien, which motion was overruled, and intervenor excepted. Judgment was given for the plaintiff, establishing the lien against the property. Intervenor moved for a new trial, which was denied, and he appealed to this Court.