145 Ga. 621 | Ga. | 1916
Lead Opinion
All the grounds of demurrer bear upon the question of'the sufficiency of the petition to withstand a general demurrer, and need not be dealt with separately. By the action it was sought to set up a statutory lien against the defendant, to subject its property to the payment of the debt owed by the contractor to the plaintiff for supplies furnished for the improvement of the defendant’s property, and used by the contractor for that purpose. The statute-upon which the action was predicated, though several times amended in certain respects not material to the present case, has been in effect for a number of years. In Lombard v. Trustees, 73 Ga. 322, it was held: “Where a materialman sought to foreclose a lien on realty on account of lumber furnished by him to a contractor working thereon, this could not be done by a direct suit on the part of the materialman against the owner of the realty alone, without suing the contractor to whom the lumber was furnished.” This ruling was announced after construing the statute upon which the claim of lien was predicated. In the course of the opinion it was said, on page 324: “If a statute be susceptible of two constructions, one consistent with natural equity and justice and one inconsistent therewith, the court should give it that eon.struetion which comports with natural equity and justice. The plaintiff in this case is seeking to reach a fund which is due and owing by defendant to Stallings, the contractor, and that too without having made Stallings a party to the proceeding. The debt which the plaintiff seeks to have paid is a debt which Stallings owes him; it would seem that Stallings should have an opportunity to be heard before the debt which defendant owes him shall be taken to pay a debt which plaintiff claims Stallings owes him.. To authorize the proceeding instituted by plaintiff would be to allow property of the citizen to be taken without trial and with no opportunity afforded for defense. Such a course would be contrary to justice and against common right.” In Mauck v. Rosser, 126 Ga. 268 (55 S. E. 32), it was held: “There can be no valid judgment of foreclosure of a materialman’s lien for materials furnished to a contractor, upon the real estate improved with such materials, in the absence of a valid judgment in his favor against the contractor for the price of such materials.” See also Clayton v. Farrar Lumber Co., 119 Ga. 37 (45 S. E. 723). The rulings above mentioned were cited and applied in Griffin v. Gainesville Iron Works, 144
There was no error in sustaining the demurrer to the petition.
Judgment affirmed..
Dissenting Opinion
dissenting. I can not concur in this decision. The reason on which the ruling by this court that the contractor must be sued to judgment previously to or concurrently with the foreclosure of the lien on the owner’s property rests, is that the