27 Ga. App. 386 | Ga. Ct. App. | 1921
1. The proprietor of a sawmill who contracts to saw timber and to furnish for that purpose a mill and a fireman at a stipulated price per day, such price to cover the rent of the mill as well as his own labor and the labor of the fireman, does not acquire, and can not foreclose, a lien for the price thus contracted for, under sections 3357, 3334, and 3535 of the Civil Code (1910), providing for laborers’ liens. Evans v. Beddingfield, 106 Ga. 755 (32 S. E. 664).
2. In order for the proprietor of a sawmill to acquire a lien upon the lumber sawed by his mill under a contract with the owner of the lumber, after the lumber sawed has been surrendered to the owner thereof, it is necessary for him to file and record his lien within ten days from the time of the completion of the work. Civil Code, (1910), §§ 3354, 3356.
3. It appearing from the affidavit of foreclosure in the instant case, as amended, that the plaintiff was a sawmill proprietor, and counsel for the plaintiff having admitted that the provisions of the Civil Code (1910), §§ 3354, 3356, had not been complied with, and it also appearing from the original affidavit of foreclosure as amended that the sum sought to be recovered was the contract price, which included the labor of the proprietor as well as the labor of an employee of the contractor and the rent of the sawmill, and thus was not within the provisions of the statute providing for the foreclosure of laborer’s liens, the court did not erf upon motion of the defendant .in dismissing the plaintiff’s affidavit of foreclosure as amended, since the amendment in substance adopted the allegations in the counter-affidavit denying the existence of a lien. Judgment affirmed.