95 Ga. App. 237 | Ga. Ct. App. | 1957
1. The pendency of a foreclosure of a laborer’s lien is not a bar to an action on account for the same debt, since, even where the lien is contested and the property replevied, no general judgment can be rendered in the foreclosure proceedings. Argo v. Fields, 112 Ga. 677 (37 S. E. 995); Triest v. Watts & Bro., 58 Ga. 73. In such a case, the lien foreclosure is not converted into a proceeding in personam by the filing of a replevy bond. The actions are entirely different and each involves a different kind of judgment. The situation is analogous to the foreclosure of a mortgage and a subsequent action on notes secured by the mortgage. Montgomery v. Fouche, 125 Ga. 43 (53 S. E. 767); Juchter v. Boehm, Bendheim & Co., 63 Ga. 71, 72. The court did not err in sustaining the plaintiff’s demurrer No. 1 to the plea in abatement.
2. The court erred in sustaining demurrer No. 2 to the cross-action. The defendant did not plead elsewhere in the cross-action or defense as a whole facts which showed affirmatively that the cross-action for abuse of legal process would not lie against the plaintiff. The court erred in sustaining the plaintiff’s demurrer No. 2 to the cross-action and in rendering a final judgment against the defendant. There was no demurrer on the ground that an action ex delicto could not be set off against an action ex contractu and none of the other demurrers was passed on by the trial court.
Judgment affirmed in part and reversed in part.