Farmers Loan & Trust Co. v. Candler

92 Ga. 249 | Ga. | 1893

Bleckley, Chief Justice.

1. The verdict in favor of Candler against the railroad company, which declared a lien upon a part of the railroad, was held by this court in The Farmers Loan & Trust Co. v. Candler, 87 Ga. 241, to be void. If this decision was correct, and it must be taken to be so, the verdict was not amendable so as to make it assert a lien upon the whole of the railroad. The jury having expressly restricted the lien to a part of the railroad, the amendment made is absolutely repugnant to the verdict itself. If the verdict was not void but only needed an amendment to make it certain, the pleadings could be resorted to for that purpose. But there is as much certainty that the verdict limits the lien to a part of the railroad as there is that any verdict was rendered. The amendment does not change uncertainty to certainty but substitutes one certainty for another certainty. It is as impossible to doubt that the verdict as found by the jury did not declare a lien on the whole road, as it is to doubt that the amendment does declare such a lien. The judgment originally entered up conformed to the verdict, and as the verdict is not amendable neither is the judgment amendable, for the two must correspond as to the extent of the lien which the one finds and the other seeks to enforce.

2. The scheme of the code, §§1979, 1980, is to give to contractors for building railroads a lien for work done or materials furnished, on certain prescribed terms, and the mode of enforcing the lien is also prescribed. Ib. §1990. It seems to us plain that the object of the code would be frustrated and virtually defeated if a contractor who has secured a lien but failed to enforce it in the manner prescribed, can abandon that lien and fall back upon an alleged equitable lien involved in the very same state of facts out pf which his legal lien arose, and thereby postpone or defeat a mortgage upon the railroad duly recorded and forclosed, this mortgage being of older date than the general judgment which the contractor has obtained for the amount of his debt. We entertain no doubt that the law contemplates that a contractor to whom it gives a legal lien upon a railroad, and who has nothing to do in order to take the benefit of it but to enforce it in the way prescribed, shall have no other lien either in addition to it or as a substitute for it. He cannot cover his failure to comply with the statute as to the enforcement of the lien, by abandoning that lien and asserting another one. Nor can he assert his legal lien otherwise than in the mode prescribed. We need not rule, and do not, whether, if there were no statutory system of liens in behalf of railroad contractors, there would be any equity in favor of the contractor against the mortgage under the circumstances of this case, or not. But with that system and the relation to it which this contractor occupies, we deem it perfectly clear that he is restricted to his statutory lien and must enforce that or none at all. The judgment of the court below on the exceptions taken pendente lite is affirmed. On the main bill of exceptions, judgment reversed.