(dissenting).
I respectfully dissent.
Admittedly, the notice of attachment filed on September 24,1973, was ineffective because not filed within 90 days following the last performance by plaintiff of work on the job on January 29,1973. But, in my view, it does not follow that the writ of attachment issued and served on December 21, 1973, pursuant to the complaint filed on December 20,1973, is “void,” as held in the opinion adopted by the majority.
No claim is made that the attachment itself was faulty in some particular, such as, improper description of the property or defective service of the writ. The only alleged “infirmity” of the attachment is that the complaint filed on December 20, 1973, could not have been sustained, due to the ineffective notice of lien, if the plaintiff had been forced to trial. I agree that if plaintiff had been put to trial upon the original complaint he would have failed, not because of any defect in the attachment, but because he could not prove one of the facts essential to establish his right to a lien, i. e., that he had given a timely notice of lien. Accordingly, the attachment would have been dissolved and the property released from the writ. But, the fact is that plaintiff was not thus put to trial and the attachment was not dissolved, but remained in full force and effect, retaining the property in the custody of the court.
Neither do I agree that in order to enforce a mechanics’ lien the subject property, if already in the custody of the court, must again be attached within 90 days after plaintiff last worked on the job or 90 days after the completion of the project. Of course, under the statute an attachment can be too late to be effective, but, until today’s decision, there was no necessity for again attaching property which was already in custodia legis by virtue of an earlier attachment. Nicely v. Nicely, 8 Tenn.App. 134 (1928); See also Reed v. Fuller, 16 Tenn.App. 47, 65 S.W.2d 841 (1932) cert. denied.
Obviously, the Legislature did not foresee the case we have before us, i. e. one in which the property was already in the custody of the court prior to the filing of the notice of lien. But since the only office of the writ of attachment is to bring the property into the custody of the court so that it may be subjected to the decree of the court, I can see no reason to have an additional writ of attachment issued and served. Accordingly, I would hold that following the second notice of lien, filed on July 3, 1974, and the amendment to the complaint, filed on August 26, 1974, there was no necessity to have another attachment filed and served, since the subject property was already in court by virtue of the attachment filed and served on December 21, 1973, which remained undissolved and fully effective.'
I am authorized to state that Mr. Justice FONES joins in this dissent.