41 S.E.2d 817 | Ga. Ct. App. | 1947
1. If the motion to set aside the verdict and judgment be construed as a motion in arrest of judgment or to set aside the judgment on the ground that the petition was so defective that no legal judgment could be based on it, the overruling of the general demurrer to the petition was unexcepted to and became the law of the case. Georgia Northern Ry. Co. v. Hutchins Jenkins,
2. In a proceeding to foreclose a lien on real property for the furnishing of labor and materials in its improvement, it is permissible for the laborer or materialman or both to sue the contractor for a judgment in the same action. Royal v. McPhail,
3. The court erred in setting aside that part of the judgment which set up a lien on the owner's property.
Judgment reversed. Sutton, P. J., and Parker, J.,concur.
The general prayers following both counts were, that a lien be set up against the described property of Mrs. Mattie Wolfe, and that a general judgment be rendered against A. B. Dean for $110. Mrs. Wolfe demurred to the petition on substantially the following grounds: (1) That it set forth no cause of action; (2) that the first and second counts were against different parties; (3) that the first and second counts set up separate and distinct contracts; (4) that the prayers requesting a general judgment against Dean are inconsistent with the first count. These demurrers were overruled on each and every ground, to which ruling no exception was taken. The jury found as follows: "We, the jury, find in favor of the plaintiff on count number 2 in the amount of one hundred and ten dollars. F. J. Howden, Foreman, September 24, 1946." Judgment was entered generally against Dean for $110 and for a lien against the described property of Mrs. Wolfe in the sum of $110, on September 24, 1946. On October 4, 1946, Mrs. Wolfe filed a motion to set aside the verdict and judgment on these grounds: (1) that the pleadings of the petition were so defective that no legal verdict and judgment could be rendered thereon; (2) that the judgment did not follow the verdict and was inconsistent therewith; and (3) that the verdict and judgment were irregular and improper and were inconsistent with the charge of the court and the law in the case. On a motion to set aside the verdict and judgment, the court set aside so much of the judgment as set up a lien on the property of Mrs. Wolfe. To this last judgment C. J. Herb excepted.