11 Ga. App. 569 | Ga. Ct. App. | 1912
Hales sought to foreclose his statutory lien, for hauling logs, upon 29,000 feet of lumber, the property of the Sattes & Wimer Lumber Company, and the company interposed a claim, setting up fhat the lumber was its property, and not the property of one G. W. Spears, under whose employment the hauling was done, and who was the defendant in the foreclosure of the lien. When
The claimant demurred orally to • the lien foreclosure, on the ground that it purported to be a foreclosure against the defendant
1. We do not think the court erred in allowing the amendment. A claim case is a proceeding equitable in its nature, and nothing is more common than to permit the claimant to make amendments amplifying his original claim and invoking the aid of equitable principles to establish it. There is no reason why the plaintiff in a claim case should be entitled to less rights than-the claimant, nor does any good reason appear why the plaintiff can not file an amendment in behalf of his joinder of issue as well as the claimant. That is all the amendment amounts to in this case. See Wilkins v. Gibson, 113 Ga. 56 (7), (38 S. E. 374, 84 Am. St. Rep. 204).
2. Then, did the court err in not dismissing the proceedings upon the ground that it appeared that the labor was done for one Spears and the lien was foreclosed against him as the nominal employer, and yet the foreclosure was sought to be enforced against the-property of the Sattes & Wimer Lumber Company? We bear
The judgment in this case is sustainable for a still better reason. The affidavit of foreclosure as amended, and the evidence, set up that the plaintiff’s lien was that of a laborer, and that the property levied upon was the product of his labor. The claimant must be' presumed to know the law with regard to the lienor’s services in cutting and hauling the logs, and to have known that its property could not be discharged from this lien by paying the original contractor, who undertook’the contract as a whole and then employed the plaintiff as a laborer to do a portion of the work. There is no evidence that the laborer had waived his lien, and there is undisputed evidence that he had not been paid for his labor. If the claimant had purchased the property in ignorance of the. ex