Cardenas

Upon further consideration of this cause upon rehearing we are satisfied with the conclusion reached in Department, as expressed in the opinion of Mr. Commissioner Searls. The supposed conflict between the opinion of the Department and the case of Fette v. Lane (Cal., Sept. 21, 1894), 37 Pac. Rep. 914 , urged in the petition for rehearing, does not exist. The court were there considering the rights of a subsequent mortgagee taking with notice of a prior unrecorded mortgage, and the question as to the rights of an attaching creditor against the holder of such a mortgage was not involved. It is true that the learned commissioner who wrote the opinion in that case suggests in passing: “ Nor could the attachment of the property by defendant, after notice of plaintiff’s mortgage, affect his lien, even if the attachment had not been dismissed.” But the question of the effect of an attachment was not before the court, and what is there said with reference thereto was not necessary to a determination of the case; it is therefore to be regarded as mere dictum, and, as it announces a doctrine which we regard as inconsistent with the plain meaning and effect of our statute, it cannot be.…