Opinion
42875.
SUBMITTED JUNE 6, 1967.
DECIDED JULY 7, 1967.
Laborer's lien. Fulton Civil Court. Before Judge Camp.
Preston L. Holland, for appellant.
Harold B. Thompson, Dan E. McConaughey, for appellee.
A proceeding to obtain a summary execution on the basis of the performance of labor by the plaintiff for the property owner, which does not disclose whether the lien is sought against personal property or real property, is subject to general demurrer. The court erred in overruling the defendant owner's general demurrer to the purported lien proceeding.
SUBMITTED JUNE 6, 1967 — DECIDED JULY 7, 1967.
Hollis A. Ewing, Jr. filed in the Civil Court of Fulton County a laborer's lien against Joe Zappa, Jr. Execution summarily issued. Neither the affidavit nor the execution stated upon what kind of property a special lien was sought. The defendant filed a cross action for damages to real property caused by the defendant's negligently performing his duties and filed a counter-affidavit and bond. The defendant also filed a general demurrer to the lien foreclosure. The plaintiff demurred specially to the defendant's measure of damages in his cross action. The defendant's demurrer was overruled and the plaintiff's demurrer was sustained by a Judge of the Civil Court of Fulton County. When the case came on for trial before another judge, the court and counsel for the parties engaged in a discussion as to what kind of case was before the court and it was disclosed that the labor performed by the plaintiff was upon real property and that he had filed his lien for labor, and materials, if any. The plaintiff conceded that he had no proper lien foreclosure and asked to be permitted to dismiss his purported lien proceeding. The court permitted the dismissal and passed an order dismissing the lien and released the defendant's bond. The defendant appealed from the order of dismissal and enumerated as errors, among other things, the overruling of the defendant's general demurrer and the sustaining of the plaintiff's special demurrer as to the question of the defendant's measure of damages.
1. The principal contention of the appellant is that the court should have sustained his general demurrer to the lien foreclosure, which judgment, he contends, would have precluded the appellee from again foreclosing his lien and that the voluntary dismissal permitted him to again foreclose his lien. In this contention the appellant is in error for the reason that a foreclosure of a lien for labor on real property in such a case as this, where the labor was performed on real property, was a mistaken remedy rather than the election of an inconsistent remedy which would bar another proper foreclosure. Southern Fed. S. L. Assn. v. Firemen's Benev. Assn., 72 Ga. App. 663, 667 ( 34 S.E.2d 674) and cases cited. However, the general demurrer of the defendant should have been sustained for the reason that the purported lien proceeding did not allege whether the lien was sought against real property or personal property. Construing the lien proceeding against the appellee it alleges that the lien is sought against real property and there is no provision of law for a summary judgment in such cases. Allred v. Hale, 84 Ga. 570 (1) ( 10 S.E. 1095); Code Ann. § 67-2002.
2. The foregoing ruling renders nugatory the judgment dismissing the lien proceedings on motion of the appellee. However, since there is no enumeration of error on the court's refusal to allow appellant to proceed on his cross action, it is immaterial how and for what reason the lien proceeding was dismissed. In such a situation we reverse the judgment overruling appellant's general demurrer to the lien proceeding with direction that the court dismiss the lien proceeding without prejudice to either party to pursue his respective rights, affirmative and defensive, as to the issues existing in the premises.
Judgment reversed with direction. Hall and Eberhardt, JJ., concur.