1 Ga. App. 707 | Ga. Ct. App. | 1907
Philip Carey Manufacturing Company brought suit to foreclose a materialman’s lien on' the property called the Yiaduct Place, in the city of Atlanta, against Steiner-Emery Company as owners and J. F. Clemmons -as contractor. By agreement of the parties his honor, FI. M. Reid, judge of the city court of Atlanta, without the intervention of a jury, rendered judgment in the case, upon the following agreed statement of facts: , The Philip Carey Manufacturing Company is a corporation of Ohio with a place of business in the city of Atlanta, and is a material-man. J. F. Clemmons was a contractor, and had contracted to improve the Yiaduct Place. Clemmons purchased of the Philip Carey Manufacturing Company certain material, part of which, amounting to $51.15, was used in improving the building of Yiaduct Place. Said material was furnished during the month of August, 1905. Philip Carey Mánufacturing Company filed its claim of lien in the office of the clerk of the superior court of Fulton county, October 7, 1905, and it was recorded October 10, 1905. The building improved is in Fulton County, Ga. The Philip Carey Manufacturing Company filed their suit on October 13, 1905, against J. F. Clemmons, contractor, and Steiner-Emery Company, now Yiaduct Place, owners. Both of said parties were served October 20, 1905. Clemmons was adjudicated a bankrupt on October 5, 1905. On the schedule of said bankrupt it appears that the Philip Carey Manufacturing Company was a creditor of
Upon the above agreed statement of facts and the admissions of the pleadings the following judgment was rendered: “Upon the pleadings in said case and upon the agreed statement of facts submitted, the court finds for the defendant, J. F. Clemmons, on his plea of discharge in bankruptcy. As no judgment can be rendered against Clemmons as contractor, I find in favor of the other defendant; and judgment is rendered against the plaintiff for costs.” The plaintiff in error excepts upon the ground that the judgment is contrary to law and without authority of law; that the effect of said judgment is to hold that the discharge in bankruptcy of a contractor relieves the property improved of a material-man’s lien for material furnished to improve the same. The contention of the plaintiff in error is, that, while no general judgment can be obtained against the contractor after his discharge in bankruptcy, the bankrupt can be made a party for the purpose of fixing the amount of the debt, and that the debt so fixed thus becomes a lien against the property improved, and the contractor’s discharge in bankruptcy does not relieve the property improved ■of its lien.
We think the finding of the trial judge was manifestly correct, in view of the facts submitted. The contractor was adjudged a bankrupt on October 5/1905, two days before the plaintiff in error filed its claim of lien on the property of Yiaduct Place on account of the material in question. In the contractor’s schedule in bankruptcy it was shown that the plaintiff in error was a creditor of the contractor on this claim for material, and that the claim .was provable in bankruptcy. According to the agreement of facts, the plaintiff in error paid no attention to the proceedings in bankruptcy. It could have gone into the bankrupt court and have established the amount of its lien and identified the use to which its material was put.. It had notice that the bankrupt court was deal
Under the very letter of the bankrupt act the court could not enter judgment against Clemmons, because, he had been adjudicated a bankrupt and discharged. Being without power to render judgment against the contractor, the court could not render a general judgment against Viaduct Place. And the plaintiff’s only remedy Avas to enforce against the specific property, into which its material went, a previous or contemporaneous judgment' against the contractor, fixing the amount of the balance due the contractor by the property owner for material furnished. It is well settled that a special judgment, fixing a lien on the property of an owner in favor of one as to whom no privity of contract exists, can not be obtained until there is first a general judgment for the claim against the contractor. Lombard v. Trustees, 73 Ga 322; Castleberry v. Johnson, 92 Ga. 499; Clayton v. Farrar, 119 Ga. 37; Mauck v. Rosser, 126 Ga. 268. It is held in Klipstein v. Allen-
Learned counsel for plaintiff in error cite the case of McCall v. Herring, 116 Ga. 234, as authority for the proposition that in an
The case of Smith v. Zachry, 115 Ga. 722, and Evans v. Rounsaville, 115 Ga. 684, are not in point. In theZachry case Smith was adjudicated a bankrupt more than a year after Zachry ob
If the question is, as distinctly stated by counsel for plaintiff in error, whether or not a valid vested lien of a materialman, under the State law, against the owner of property for improvement of his real estate, is divested by a petition in bankruptcy by or against the contractor, we would unhesitatingly answer, no. But if the ■question as applicable to the facts of this case is whether a lien in process of establishment is prevented from ripening, by a discharge in bankruptcy, where the rights of innocent third parties are concerned (whose double liability might have been prevented by the plaintiff), we answer, yes. As to whether a mere petition in bankruptcy would have the effect of estopping the prosecuting and per
All of the cases cited are similar to the pending case. In Kollock v. Jackson, 5 Ga. 153, the factor’s lien rested on actual possession of the property of the bankrupt prior to the bankruptcy. In Loudon v. Blandford, 56 Ga. 151, the question raised here was not decided, but the lien was complete prior to the bankruptcy proceedings. In Berry v. Jackson, 115 Ga. 196, the title to specific property was involved, the plaintiff in the trover proceedings, on the one hand, claiming the actual title, and the bankrupt resisting on the other. A fundamental distinction, however, between all the cases cited and the case at bar is, that in this case the plaintiff in error seeks to establish a lien on the property of a third person, whereas the cases cited treat only of liens already established on the property of the bankrupt himself prior to bankruptcy proceedings. ,Judgment affirmed.