Dissenting. — The results of this case furnish a rigorous example of either a grave defect and injustice existing in our lien laws, or an unfortunate misconstruction and application of its provisions. Here, as will occur in most eases, a materialman commences to furnish material for the building before any labor is performed in its construction, and immediately thereafter, and prior to the commencement of work by certain laborers, mortgages to the amount of $30,000 are given on the premises. In this ease the men who performed the labor, and out of this material erected a completed structure, must stand by and see the materialman paid first, and then the mortgagee receives his money, and, if the unexpected and unusual should happen, he may then, thirdly, in the order of preferences, receive his pay. This, too, directly in view of the provisions of section 11 of the lien law (Laws 1899, p. 149), which says the laborers’ lien shall rank first in the order of preferences and priorities among lien claimants. Under these conditions and circumstances it seems to me that the burden of loss falls unequally and unjustly heavy upon the shoulders of labor. On the reargument of this case it was urged by the respondent that, in the event the court should adhere to the majority opinion originally filed, then the court should direct the trial court as to the kind and character of decree to be entered, and the priorities and order of preferences to be recognized in the decree, as among the various lien claimants and the mortgagee. The majority, however, decline to point out the preferences among these claimants, or to direct the trial court as to the decree, although the opinion refers to Henry & Coatsworth Co. v. Fisherdick, 37 Neb. 207, 55 N. W. 643, as being a case similar to this, and one which *352might afford proper direction to the court. I am not yet prepared to believe that the majority of this court would approve of a decree entered in conformity with the decree directed in this Nebraska ease. Indeed, that case ought not to be considered for a moment as authority under our statute. An examination of chapter 54 of the Compiled Statutes of Nebraska of 1881 will disclose the fact that the Nebraska mechanic’s lien law bears no similarity to ours, and is entirely destitute of any provisions corresponding to sections 5 and 11 of our lien law. As I read and understand section 3818 of the Revised Statutes of 1887, it becomes the duty of this court in a case like the one at bar, where judgment is reversed without granting a new trial, to direct, or at least indicate, the correct judgment to be entered in the lower court. This question must necessarily arise when the remittitur goes down. The lower court has proceeded upon the theory that it was his duty, in entering judgment in such a ease, to follow the requirements of section 11 of the lien law, and I think he was entirely correct in that view. The court here, however, has reversed the judgment entered in conformity with that section of the statute. The question will at once arise in the district court as to whether or not the court i-hall give the materialman the preference over the laborer or the laborer preference over the materialman, or whether they shall all be thrown into hotchpotch, and laborers, materialmen, and contractors be all classed together. My associates in the majority opinion say: “The provisions of section 11 ^ apply to eases where no mortgages intervene, and also in cases where mortgages intervene and the lien claimants are thereby divided into classes.” I am not sure that I understand just what is meant by this observation, but it is quite clear to me, after reading section 11, that it does not contain such language, nor do I find any exception mado therein as to the application of the rule of priorities among claimants. I know of no authority to be found in the books that justifies interpolating new and additional language into a statute that is already clear and ex*353plicit. I am still the more firmly convinced that the judgment of the district court should be affirmed.
Since writing the foregoing the chief justice has written his concurring opinion. It is there held in effect that every man who seeks employment on a building in course of construction must, at his peril, examine the county records from time to time to ascertain whether any mortgage or encumbrance has in the meanwhile been placed on the property. The view I have endeavored to express is that, as I read the statute, the legislature intended that the fact a building is in course of construction when a loan is made on the property is itself actual notice to the lender that the building is to be completed, and that those who complete it must be paid, and that therefore the laborer and materialman may work and furnish material without examining records or incurring the penalties of constructive notice.