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, 119 Ga. 504 (46 S.E. 659); Palmer
v. Jackson, 188 Ga. 336 (4 S.E.2d 28).
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, 97 Ga. 457 (25 S.E. 512); Massachusetts Bonding Ins. Co. v. Realty Trust Co., 142 Ga. 499
(83 S.E. 210); Holmes v. Venable, 27 Ga. App. 431 (3) (109 S.E. 175); Griffin Brothers v. Gainesville Iron Works, 144 Ga. 840 (88 S.E. 201); Columbian Iron Works v. Crystal Springs Bleachery Co., 145 Ga. 621 (89 S.E. 751). Therefore, under the allegations of the second count and the prayers, the legal intendment of the verdict found was in favor of the plaintiff and against the defendant contractor and in favor of a lien on the owner's property. It follows that the only legal basis for the court's action would have been a motion for a new trial, grounded on the contention that the evidence did not authorize the verdict. There being no brief of evidence, the motion to set aside is a nullity if it is treated as a motion for a new trial. Schofield's Sons Co.
v. Vaughn, 40 Ga. App. 568 (150 S.E. 569); Dollar v. Fred W. Amend Co., 186 Ga. 717 (198 S.E. 753); Crenshaw
v. Crenshaw, 198 Ga. 536 (32 S.E.2d 177); Claughton
v. State, 179 Ga. 157 (175 S.E. 470).
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.
DECIDED MARCH 21, 1947.
C. J. Herb sued Mrs. Mattie Wolfe and A. B. Dean in two counts to obtain a general judgment against Dean, a contractor, for labor and materials furnished, and a lien on certain property of Mrs. Wolfe. The first count alleged: that Mrs. Wolfe was a resident of Chatham County; that on September 28, 1945, she contracted with the plaintiff to do work and furnish material for the improvement of certain real estate of Mrs. Wolfe of the value of $110; that the described work was done and the described material furnished by the plaintiff according to the contract; that the property of Mrs. Wolfe is as described; that within three months after the completion of the work the plaintiff recorded his claim of lien; and that this action was commenced within twelve months from the time the
lien became due. The second count alleged that A. B. Dean and Mrs. Mattie Wolfe are residents of Chatham County; that on September 5, 1915, Mrs. Wolfe entered into a contract with Dean for the improvement of described property for $1500; that on September 18, 1945, Dean employed the plaintiff to do work and furnish material for the improvement of the property of Mrs. Wolfe; that the work was done and the material was furnished, in accordance with the contract as described, in the amount of $110; that the work was finished October 6, 1945; that within three months after the completion of the work the plaintiff recorded his claim of lien; and that this action was commenced within twelve months from the time said lien became due.
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.