Opinion
35118.
DECIDED JUNE 2, 1954.
Materialman's lien. Before Judge Manning. Cobb Superior Court. January 21, 1954.
Johnson, Hatcher Meyerson, for plaintiff in error.
Harry E. Williams, contra.
Where a materialman files an action against a contractor to obtain a judgment for materials furnished for the improvement of an owner's property, and in the same action sues to obtain a lien on the owner's property, and where the owner files a general demurrer to the petition, the mere fact that at the return term of the case the materialman takes a default judgment against the contractor does not preclude the materialman from thereafter amending his petition, before a judgment on the owner's demurrer, to perfect his case against the owner.
DECIDED JUNE 2, 1954.
West Lumber Company filed an action in Cobb Superior Court against T. M. Fortner to secure a judgment for the price of materials sold to him by the plaintiff and allegedly used in the improvement of the property of H. W. Aderhold, and to obtain a lien upon the property of the owner. The petition was filed on October 4, 1951. On October 24, 1951, the defendant-owner, H. W. Aderhold, filed a general demurrer to the petition applicable only to the cause of action as it related to him. At the January term, 1952, the plaintiff took a general judgment by default against T. M. Fortner. At the January term 1954, the plaintiff had the case placed on the calendar for trial. Upon the call of the case the plaintiff tendered an amendment to the petition to correct a deficiency in the original petition, alleging in the amendment that the materials were used in the improvement of the owner's property pursuant to a contract between the defendants, and that the lien was filed within three months after the material was furnished by the plaintiff. The amendment was allowed subject to objection and demurrer. H. W. Aderhold objected to the amendment on the ground that it came too late, that is, after a judgment had been rendered against the other defendant. The court disallowed the amendment and sustained the original general demurrer to the original petition.
The petition here was in effect two causes of action — one for a general judgment against the contractor, and the other to obtain a materialman's lien on the owner's property. Before a lien can be foreclosed for materials furnished to a contractor, there must be a valid judgment against the contractor for the price of the material (Code, Ann. Supp., § 67-2002, catchword "Contractor"), but the two actions may be brought concurrently. Castleberry v. Johnston, 92 Ga. 499 ( 17 S.E. 772); Thurman v. Willingham, 18 Ga. App. 395 ( 89 S.E. 442). Where the two actions are combined in the same petition, they are no more joint than when filed separately. In such a combined action neither defendant is concerned with the plaintiff's action against the other. The taking of a default judgment against the contractor without at the same time taking a judgment for a lien against the owner would not of itself preclude a later judgment for a lien against the owner. This is especially true when the owner files a demurrer to the petition as against him and separates the trials of the two issues involved. Moreover, the court in this case treated the case against the owner as still pending by ruling on the original demurrer. The case against the owner was still pending, and the petition against the owner contained enough to amend by (Code § 81-1301); and since the case was still pending and was not ended by the judgment against the contractor, the court erred in rejecting the amendment. And since the amendment perfected the cause of action against the owner, the court erred in sustaining the original demurrer to the original petition. The court should have allowed the amendment, which would have made the petition as amended good as against a renewed demurrer to the petition as amended.
Judgment reversed. Quillian and Nichols, JJ., concur.