Croom

This is an action to foreclose a mechanic’s lien for materials furnished between July 1, 1959, and August 30, 1959. The claim of lien was recorded October 15, 1959. This action was filed December 14, 1959. The complaint does not allege that the plaintiff caused “to be given not later than 15 days prior to the filing of (the) claim of lien a written notice as prescribed by” section 1193 of the Code of Civil Procedure. Service of such a notice on the owner and the contractor is required of materialmen by new provisions of that section enacted in 1959. The change requiring such notice went into effect September 18,1959. Because of the lack of this allegation the court sustained a demurrer to the complaint without leave to amend. The plaintiff appeals from the judgment of dismissal which followed.

The only question involved is the constitutionality of the above requirement of notice. Code of Civil Procedure, section 1193 reads in part, “ (a) Except one under direct contract with the owner or one performing actual labor for wages, every person who furnishes labor, service, equipment or material for which a lien otherwise can be claimed under this chapter, must, as a necessary…