60 Ga. App. 832 | Ga. Ct. App. | 1939
Chambers Lumber Company brought suit to foreclose its materialman’s lien against Mrs. Annie Ruth Goforth Gilmer as the owner of certain realty in Gainesville, Georgia, and Home Owners Loan Corporation as owner and holder of a security deed to said property. After evidence had been introduced by all parties the court directed a verdict in favor of the defendants, and the exception is to a judgment overruling the plaintiff’s motion for new trial. In the view we take of the case we think that the action of the court was proper, inasmuch as the evidence showed conclusively that the plaintiff’s lien was not recorded within three
Plaintiff in error contents itself in arguing that, being the last .item furnished, whatever it was, the three-months time in which
The function of a foreclosure suit is not to establish for the first time when and what materials were furnished for a particular job. It is not a suit in personam, when the contractor is not a party and the purpose is merely to absolutely establish a' special lien against the property involved, and no general verdict and judgment can be obtained therein against the owner. Ryals v. Smith, 102 Ga. 768 (29 S. E. 968); Langley v. Simmons, 143 Ga. 699 (85 S. E. 832); Griffin v. Gainesville Iron Works, 144 Ga. 840 (88 S. E. 201); Middle Georgia Lumber Co. v. Hunt, 53 Ga. App. 578, 580 (186 S. E. 714). Although the initial suit against the contractor is in personam, the foreclosure suit against the owner is strictly in rem. Buck v. Tifton Mfg. Co., 4 Ga. App. 695, 696 (62 S. E. 107), citing. It is in the antecedent suit against the contractor that the adjudication is made as to items furnished and the amount due with respect to a particular contract. As to the contractor the obligation is primary; as to the owner it is collateral only, and conditioned on the recording by the materialman of a claim of lien within the statutory period. “It is well settled that before a materialman’s lien for materials furnished to a contractor to improve the real estate of another can be foreclosed, there must be a judgment for the price of such materials in his favor against the contractor, or the contractor must be sued concurrently with’ the owner of the property improved.” (Italics ours.) Mauck v. Rosser, 126 Ga. 268, 274 (55 S. E. 32); Pike Lumber Co. v. Mitchell, 132 Ga. 675 (64 S. E. 998); Rome Brick Co. v. West, 134 Ga. 65 (67 S. E. 400); Hood Brick Co. v. Mangham, 161 Ga. 457 (131 S. E. 172). “The reason of the rule is that the landowner should not be called on to pay a debt he did not contract, and for which his property is liable only by force of a statute, until the materialman has established by judgment, in a proceeding to which the contractor is a party, that the contractor owes to him the amount for which he is seeking to assert his lien. The landowner’s liability to the materialman who sells
A ground of the motion for new trial complains that the contractor’s affidavit was improperly admitted in evidence, over the plaintiff’s objection, in that its execution had not been proved. The plaintiff, to show lack of execution, called as a witness the clerk of the superior court of Hall County. He testified that he was sure that he saw J. B. Taylor sign the paper purporting to be an affidavit, because the witness put his own signature and seal on the paper, that he was positive that his purported signature was his own, but that he could not remember whether or not he had administered an oath to Taylor. In Britt v. Davis, 130 Ga. 74, 76 (60 S. E. 180), it was said: “The signature of the person claimed to be an affiant, accompanied by the jurat signed by the officer, is prima facie sufficient evidence that the oath was administered. But if in fact no oath was administered, a false certificate by the magistrate to that effect would not take the place of the administration of the oath. If the paper appears on its face to be regular, one who attacks it carries the burden of showing that it was not in fact legally executed.” In Miller v. Caraker, 9 Ga. App. 255 (2) (71 S. E. 9), it was held: “A signed statement of facts, purporting to be the statement of the signer, followed by the certificate of an officer authorized to administer oaths, that it was sworn to and subscribed before him, is a lawful affidavit. It is not necessary that it should be stated in the instrument, prior to the signature of the affiant, that the declaration was made under oath, if in fact the oath was administered. Whether the oath was or was not administered is a matter as to which the certificate of the officer is prima facie evidence, but as to which parol evidence is admissible.” See Green v. Rhodes, 8 Ga. App. 301 (68 S. E. 1090); Harris v. Hines, 35 Ga. App. 414 (3) (133 S. E. 294). The burden was on the plaintiff to overcome the prima facie validity of the paper as a lawful affidavit, and it failed to carry
Judgment affirmed.