Opinion
36526.
DECIDED JANUARY 24, 1957. REHEARING DENIED FEBRUARY 12, 1957.
Petition to foreclose materialman's lien. Before Judge Heery. Savannah City Court. October 26, 1956.
Gilbert E. Johnson, James E. McAleer, for plaintiff in error.
Owen H. Page, Jr., Charles L. Sparkman, contra.
There was no error in sustaining the demurrer and dismissing the petition.
DECIDED JANUARY 24, 1957 — REHEARING DENIED FEBRUARY 12, 1957.
Victory Lumber Company filed an action, in the City Court of Savannah, against Lenzie R. Ellison to foreclose a materialman's lien.
The petition, filed July 30, 1956, alleged in substance that: defendant is indebted to plaintiff in the sum of $349.17 together with interest thereon at the rate of seven percent per annum from March 1st, 1955, upon an open account, as will more fully appear by reference to the itemized statements hereunto annexed and made a part thereof; the account was incurred for materials furnished and used in erecting a house on Lot 88 Fairfield, Chatham County, Georgia; which said materials were furnished by the Victory Lumber Company to and at the instance of the Nu Glo Construction Company, a contractor employed by Lenzie R. Ellison and engaged in the construction of the above said house; plaintiff has performed his contract for furnishing the materials; within three months from the time the materials were furnished and the contract completed, the plaintiff recorded his claim of lien upon the realty as required by law; a copy of the lien is attached hereto and made a part hereof; the said lien was recorded in Record Book 62-F, Folio 404 in the office of the Clerk of the Superior Court of Chatham County on the 26th day of May 1955; the plaintiff is informed and believes that there was a contractual relation between Lenzie R. Ellison, the defendant, and Landphord L. Harrelson and Robert L. Dulany d/b/a Nu Glo Construction Company in connection with the improvement of the realty, and it is unnecessary to make Robert L. Dulany and Landphord L. Harrelson d/b/a Nu Glo Construction Company a party to this suit as both were adjudged bankrupt as individuals and as a partnership within twelve months from the date such materials were furnished; wherefore, within the time required by law, plaintiff brings this action, and prays for special judgment giving a lien on said real estate, and prays that process issue requiring the said defendant to be and appear at the next term of said court, to answer petitioner's complaint.
The defendant filed both general and special demurrers to the petition. The judge sustained the general demurrers and dismissed the petition. The plaintiff excepts to that ruling.
Prior to the passage of the amendments of 1941 and 1952 to Code § 67-2002 (3) it was, without exception, a condition precedent to the enforcement of a materialman's lien against the property of the owner, for materials furnished a contractor, that the plaintiff obtain a valid judgment against the contractor for the price of the materials. Mauck v. Rosser, 126 Ga. 268 ( 55 S.E. 32); Lombard v. Trustees of Young Men's Library Assn. Fund, 73 Ga. 322; Pike Brothers Lumber Co. v. Mitchell, 132 Ga. 675 ( 64 S.E. 998, 26 L.R.A. (NS) 409); Rome Brick Co. v. West, 134 Ga. 65 ( 67 S.E. 400); Philip Carey Mfg. Co. v. Viaduct Place, 1 Ga. App. 707 ( 58 S.E. 274); Buck v. Tifton Mfg. Co., 4 Ga. App. 695 ( 62 S.E. 107); Griffin Bros. v. Gainesville Iron Works, 144 Ga. 840 ( 88 S.E. 201). Under these decisions if the contractor had been adjudged a bankrupt, so that no judgment in personam could be had against him, the liability of the contractor was annulled and the materialman's lien could not thereafter be foreclosed against the property of the owner. Ricks v. Smith, 20 Ga. App. 491 (1, 2) ( 93 S.E. 116); Middle Georgia Lumber Co. v. Hunt, 53 Ga. App. 578, 582 ( 186 S.E. 714); Pike Bros. Lumber Co. v. Mitchell, 132 Ga. 675, supra; Philip Carey Mfg. Co. v. Viaduct Place, 1 Ga. App. 707 (4), supra.
In 1941 and 1952, Code § 67-2002 (3) was amended to read:
"The commencement of an action for the recovery of the amount of his claim within 12 months from the time the same shall become due.
"In the event any contractor procuring material, architect's services, labor or supplies for building, repairing or improving any real estate, building or other structure shall abscond or die or remove from the State within 12 months from the date such services, labor, supplies or materials are furnished him, so that personal jurisdiction cannot be obtained on said contractor in a suit for said services, material, labor or supplies, or if, after the filing of suit against such contractor, no final judgment can be obtained against him for the value of such material, services, labor or supplies, by reason of the bankruptcy of said contractor and his subsequent discharge from civil liabilities, or by reason of his death, then and in any of said events, the person or persons so furnishing material, services, labor and supplies shall be relieved of the necessity of obtaining judgment against such contractor as a prerequisite to enforcing a lien against the property improved by said contractor, and may, subject to the provision of § 67-2001 enforce said lien directly against the property so improved, in an action against the owner thereof, but with the judgment rendered in any such proceeding to be limited to a judgment in rem against the property improved and to impose no personal liability upon the owner of said property: Provided, that in such action for recovery, the owner of the real estate improved, who has paid the agreed price, or any part of same may set up such payment in any action brought, and prove by competent and relevant evidence that such payments were applied as provided by law, and no judgment shall be rendered against the property improved."
The amendments made an exception to the general rule that a judgment must first be obtained against the contractor and provided that if ". . . after the filing of suit against such contractor, no final judgment can be obtained against him for the value of such material, services, labor or supplies, by reason of the bankruptcy of said contractor and his subsequent discharge from civil liabilities . . . " the plaintiff would be relieved of the necessity of obtaining a judgment against such contractor. The amendments did not, however, relieve the plaintiff of the necessity of filing suit against the contractor. Therefore, as in the present case, if no suit has been filed against the contractor prior to his bankruptcy and discharge from civil liabilities, the lien cannot be foreclosed against the property of the owner, because it would not fall within the exception stated in Code § 67-2002 (3).
This holding is in conflict with statements in Chandler v. Pennington, 89 Ga. App. 676 (3) ( 80 S.E.2d 843) and Bryant v. Jones, 90 Ga. App. 314 (1) ( 83 S.E.2d 46). In those cases it is stated that it is not a condition precedent to the enforcement of the lien against the property of the owner that a suit be commenced against the contractor where the contractor has become a bankrupt within 12 months of the due date of the account. These statements are obiter and as such establish no binding legal precedent.
The judge did not err in sustaining the general demurrer and dismissing the petition.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.