*1 Rothschild, Albert Stubbs, Land, Hollis & Hatcher, Thornton, Jr., appellees. for Stubbs, M. Roy W. v. CORPORATION EQUITIES 49115. CENTENNIAL HOLLIS. Judge.

Evans, and filed A. Hollis William July On used for materials labor and lien for recorded Multicon and Centennial of real estate of improvement the lien was alleged It was Corporation. Equities and material labor from date when 3 months filed within and material that the labor alleged It furnished. was were Multicon Construction at the instance furnished were (one of Multicon noted that let Here Corporation. filed) limited is a the lien was whom those Construction Ohio; Multicon while partnership (at the and materials labor whose instance Corporation furnished) corporation. an Ohio were Equities 4, 1973, sued Centennial Hollis June

On $25,642.14 for labor and for Corporation in the as was set out it, same amount furnished A complaint. to the the lien attached lien, copy Service property. sought also lien was special for corporation’s agent foreign accomplished upon was 23, 1973, a filed, July and on was service. No answer lien sought special in the amount judgment default 10,1973, three were awarded. On October property on the was filed later, judgment a motion to set aside terms aside motion to set defendant, nisi issued. The and rule default, alleged but opening did pray not hearing A be set aside. void and should judgment motion held, denied the and the court nisi was on the rule stating that property, lien on special to set aside (money) in personam stipulated had Defendant was void. defendant Held: appeals. pleadings this judgment

1. In order to set aside in fact existed. no claim affirmatively show (Ga. 609, 662; 1967, L. pp. pp. Gunter, Cornelia v. 226, 239, City of Ga. argues that an entry Defendant

without a void. But under Section 39 of the law jury is *2 court, creating that a trial must be demanded as jury 1935, 500, Indeed, in L. 503. specifically provided pp. Ga. this court has held that where no is demanded it is jury v. jury. Cherry not error to the issue without a try (23 McCutchen, 682, Owen v. 587); 68 Ga. 690 SE2d App. Stevenson, (89 435). App. 18 Ga. 391 SE

In the absence of any showing improper of service (lack notice), of the failure of defendant to jury demand a 39, pursuant trial to Section is a supra, right waiver of to trial by jury.

3. The lien complaint attached to the shows clearly it requirements met of substantially Code Ann. §§ 67-2001, 67-2002. The lien states it was filed within three months after labor and materials were furnished at the instance of a requires nonresident. The law suit to be filed, "within 12 months from the same time the shall be- Still, (124 come due.” McCluskey v. 32 Ga. 641 App. SE Reeves, 4) (55 Cowart 548); v. (1, 80 App. Ga. 161 SE2d Martin, 911); compare Chambers Lumber Co. v. 112 Ga. (146 Co., Eubank v. Barber-Colman App. 529); 826 SE2d (2b) (154 638). 115 Ga. App. 219 SE2d This court presumes is supported fact by every Kiser, v. essential to make it Kiser binding. valid and 101 (1) (114 397). Ga. App. 511 SE2d complaint Plaintiff’s attached a copy of the notice of court, lien filed in the superior and it recites that and labor in improvement were used of lien; defendant’s real estate as described in the and which "were furnished by undersigned at the instance of Multicon Corp., Construction an Ohio corporation.” The Civil pleadings Practice Act as to notice requires now general there be a averment conditions precedent performed or have occurred. See (c) (§ 9, CPA; L. pp. Ga. argues plaintiff Defendant required to allege and prove personal jurisdiction could not be contractor,

obtained on before was entitled However, to seek a in rem property. filed complaint shows such contractor be a resident Ohio, of as of generally. Evidence to the fact residence could be within the framework proven complaint, therefore sufficient. See Mitchell v. complaint (173 DeFreitas, Dickey, v. 695); 226 Ga. 218 Harper SE2d (160 Products 260); 117 Ga. SE2d Welding App. of Ga. Co., (193 v. S. D. Mullins 474, 477 881); App. 127 Ga. SE2d (203 Discount Cooper, Southern Co. v. App. 130 Ga. 237). For thorough SE2d discussion proving regard regulatory Search, Inc. licenses see the recent case Management Kinard, v. 231 Ga. it is held that There in order to authorize a recovery by plaintiff holding license, prove he regulatory may same at whatever stage proceedings should appear. 5. No reason set has been shown to aside the judgment as void. Bell, J, Pannell, J, Deen, Judgment C. P. affirmed. *3 JJ,

Quillian, Webb, Eberhardt, J., Stolz and concur. P. Clark, J., dissent. May

Submitted March Decided 1974 1974 Rehearing denied June Hansell, Post, Aeree, & Dorsey, Brandon Dent for appellant.

Howard, Hall, Hall, Jr., Howard & V. William for appellee. Presiding Judge, dissenting.

Eberhardt, For two reasons I dissent. averment, There is general, no even that

prerequisites to the to right proceed with the lien foreclosure, or right to the to proceed in the foreclosure claim of lien under Code Ann. 67-2002 have occurred or performed. I am holding aware of the of the Supreme Court in Search, Kinard, Management Inc. v. 26Ga. 899), but only that case dealt with the matter of whether of a holding license an by employment agency must as a might proved part or be complaint, in the alleged be for its recovery by agency a the trial to authorize for the defendant. securing in employment commission make provides 67-2002 Here Code be created "they in 67-2001 liens good specified with provisions, in accordance following and declared not be effective, lien shall any them the and on failure viz: party claiming compliance by "1. A substantial . . with his contract. the lien of lien within for record of his claim filing

"2. The ... of the work or completion after the three months machinery material or three months after such within . . furnished. for the recovery

"3. commencement of an action The from the within 12 months of the amount of his claim In connection it become due.” this time the same shall contractor or in the event provided is further material, or for supplies labor procuring subcontractor abscond, or die or of real estate shall improving 12 months from the remove himself from the state within him, or if he shall are furnished to date such materials or, suit, filing if after no final bankrupt, adjudicated him reason of his can be obtained persons in so adjudication bankruptcy, death or relieved of the supplies materials and shall be furnishing such contractor obtaining judgment against prerequisite as enforcing a lien or subcontractor enforce the lien improved, may property owner, limited to directly an action in rem. 81A-181) (Code provides CPA § to all apply as found therein "shall rules of to the extent except special statutory proceedings *4 procedure specific practice rules conflict law. expressly prescribed by herewith and are ”(Emphasis supplied.) (c) (Code (c))

Further, CPA 9 § pleading that there should be a expressly recognizes precedent, performance "the or occurrence of conditions it all [though] generally is sufficient to aver or have precedent performed conditions occurred.” 67-2002, terms, is that its

My by view Code precedent makes the of the conditions stated requirement prescribed therein to be a "expressly law.” should, it appear, does not as it on the

Consequently, face of the record that has sued or obtained judgment against the contractor to whom the materials supplied, were nor does it appear any of the which, 67-2002, exceptions have under occurred would excuse the obtaining against of the seeking contractor before to enforce the lien.

We presume precedent cannot that a condition has occurred or has performed, been for absent its occurrence or performance plaintiff cannot set forth a claim for relief and if he does not it plead he sets forth no claim on which relief can be granted.

2. Unless it affirmatively appears have occurred or have been performed, a suit directly against the owner with whom supplier of materials had no contractual relationship cannot be maintained. Athens Electric Co. v. Supply Delta (114 Oil, Inc., 101 Ga. App. SE2d While 67-2002 does excuse the plaintiff from obtaining prior judgment against the contractor if the adjudicated bankrupt, contractor has been we have yet held that this does not obviate the suit filing the contractor within the twelve months after the Ellison, amount was due. Victory Lumber Co. v. 95 Ga. 105, 106 App. The requisites of the statute appear. The suit to foreclose the lien brought only against Centennial Equities Corporation, described as the owner The claim premises. of lien attached as an exhibit asserts supplied were Multicon Construction Corporation. appear

Since does not that plaintiff has obtained prior judgment the contractor and does not so, proceed contemporaneously to do the action lie, the owner to foreclose the lien did not simply proceed. could not lawfully concedes that the in

Plaintiff-appellee personam *5 owner, in direct being judgment against taken 67-2002, Ann. of Code provisions contravention is void. why plaintiff no reason appear

There would instituted a suit Hollis could not have an Corporation, Ohio contractor Multicon Construction Long Arm service under corporation, obtained and, if Statute, seq., 24-113 entitled et thereto, it as is a judgment have obtained attempting under Code 67-2002 before required claim of lien. The mere fact foreclose his does not show that corporation contractor is an Ohio state. It has has absconded or removed itself from this but has likewise beginning, been a nonresident from the Arm process Long to the service of under the subject been and its whereabouts beginning, Statute from the 67-2002 provision relieving known. The of Code if the contractor procuring judgment or die or remove from the State within shall "abscond labor, services, or supplies months from the date such him” if because of applies only material are furnished such cannot be obtained "personal jurisdiction an event subcontractor, on or and no final said contractor can him for the value of be obtained material, services, is not supplies.” such labor and That the case here.

The of foreclosure is void as well as the and I would reverse. purported personal judgment, I to state that Clark Judge joins am authorized this dissent. A. REAL

49177. PATE et al v. MILFORD SCOTT COMPANY, ESTATE INC. Judge.

Evans, real estate Company, a licensed Realty Scott Pate, firm, H. owner of contends that Waddell brokerage