Jones Mercantile Company v. Lyn-Har, Inc.

Full title: JONES MERCANTILE COMPANY v. LYN-HAR, INC

Court: Court of Appeals of Georgia

Date published: Jul 7, 1980

270 S.E.2d 374 (Ga. Ct. App. 1980)

270 S.E.2d 374

Opinion

58678.

SUBMITTED OCTOBER 2, 1979.

DECIDED JULY 7, 1980.

Action on account. Cobb Superior Court. Before Judge Hames.

Barry W. Bishop, for appellant.

Toby B. Prodgers, for appellee.

SHULMAN, Judge.

In the first appearance of this case, 152 Ga. App. 798 ( 264 S.E.2d 270), we affirmed the grant of summary judgment to the property owner in an action to foreclose a materialman's lien. On certiorari, the Supreme Court vacated this court's opinion and remanded the case for reconsideration in light of the holding therein ( Jones Mercantile Co. v. Lyn-Har, Inc., 245 Ga. 812 (1980)), which placed on the defendant-property owner the burden of demonstrating that the sums paid to the contractor were properly appropriated to materialmen and laborers or that the contractor's statutory affidavit concerning such indebtedness had been obtained.

A review of the record in this case reveals that the defendant failed to make such a showing. Accordingly, we must reverse the grant of summary judgment to the defendant.

Judgment reversed. Deen, C. J., and Carley, J., concur.

SUBMITTED OCTOBER 2, 1979 — DECIDED JULY 7, 1980.