126 Ga. 268 | Ga. | 1906
1. In our opinion, there could be no lawful judgment foreclosing a materialman’s lien in this case, for the reason that no judgment for the amount of the claim had been previously obtained against the contractor, and no valid judgment could be rendered against him in this proceeding, because the court had no jurisdiction over him, and he did nothing which amounted to a waiver of jurisdiction. Hartsfield v. Morris, 89 Ga. 254, and cit.; Sanford v. Bates, 99 Ga. 145. Section 16 of article 6 of the constitution of this State deals with the subject of venue. Paragraph 1 of this section provides for the venue of divorce cases. Paragraph 2 declares that cases respecting the titles to land shall be tried in the county where the land lies, except where a single tract is divided by a county line, when the superior court of either county shall have jurisdiction. Paragraph 3 provides that equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed. It is provided in paragraph 4 that “suits against joint obligors, joint promisors, copartners, or joint trespassers, residing in different counties, may be tried in either county.” Paragraph 5 provides that “suits against the maker and indorser of promissory notes, or drawer, acceptor, and indorser of foreign or inland bills of exchange, or like instruments, residing in different counties, shall be brought in the county where the maker or acceptor resides.” Then, paragraph 6 lays down the general rule as to the venue in civil cases in the following words: “All other civil cases shall be tried in the county where the defendant resides.” Civil Code, §§ 5869, 5870, 5871, 5872, 5873, 5874. It is apparent, therefore, that in so far as the present case was a proceeding against Kellam, the contractor, for the purpose of recovering a general judgment against him for the amount of the plaintiff’s claim, it had to be brought in the county of his residence, which was DeKalb, unless the case falls within some one of the above-indicated exceptions to this general rule as to the venue of civil cases, which are enumerated and specified in the constitution. Of course the case is not covered by the provisions of paragraphs 1, 3, or 5. Naturally, it is not contended by the plaintiff in error that the case falls under the provisions of paragraph 2, as this would amount to an abandonment of his case, for
2. As the present case does not fall within any of the exceptions to the general rule laid down by the constitution, that all civil cases shall be tried in the county where the defendant resides; and as it appeared upon the face of the proceeding that Kellam, the contractor, and the party against whom a general judgment was
3. It is well settled that before a materialman’s lien for materials furnished to a contractor to improve the real estate of another can be foreclosed, there must be a judgment for the price of such materials in his favor against the contractor, or the contractor must be sued concurrently with the owner of the property improved. Lombard v. Trustees, 73 Ga. 322; Castleberry v. Johnson, 92 Ga. 499; Clayton v. Farrar Lumber Co., 119 Ga. 37. In the present case there was an effort by the materialman to sue the contractor to whom he had furnished the material, and the owner of the property upon which it was used, concurrently; but this effort failed, because the court in which the suit was brought had no jurisdiction over the contractor. And as the materialman could not foreclose any lien upon the property in question, without a valid judgment establishing the liability of the contractor for the amount of his claim, the judgment of foreclosure was void.
It follows that the judge of the superior court not only did right in sustaining the certiorari, but also did right in rendering a final judgment, dismissing the plaintfif’s cause. Whether or not the intimation thrown out in Castleberry v. Johnson, 92 Ga. 499, as to going into equity when the contractor had left the State, would have any application to residence in different counties, is a question not now before us.
Judgment affirmed.