Vulcan Materials Co. v. D. H. Overmyer Warehouse Co.

115 Ga. App. 792 | Ga. Ct. App. | 1967

Hall, Judge.

The plaintiff sued the defendant for a sum allegedly due for materials furnished the defendant and used in improvement of the defendant’s real estate, and for a special lien on the real estate.

To be entitled to the lien sought the plaintiff was required to prove both the filing for record of his claim of lien within three months after the materials were furnished, and the commencement of an action for recovery of the amount of his claim within 12 months from the time it became due. Ga. L. 1874, p. 45, as amended (Code Ann. § 67-2002).

The evidence showed that this plaintiff filed his materialman’s lien on November 17, 1965, and that it was recorded within three months from the last delivery of materials included in its claim of lien as required by law. Calhoun Brick Co. v. Pattillo Lumber Co., 10 Ga. App. 181, 183 (73 SE 23); Hill v. Dealers Supply Co., 103 Ga. App. 846 (120 SE2d 879). The plaintiff filed this suit for recovery of the amount of his claim within 12 months from the time it became due —the date of delivery of the last item included in his claim. McCluskey v. Still, 32 Ga. App. 641 (124 SE 363).

The plaintiff proved his claim for materials furnished by his business records admitted in evidence without objection and by testimony that the claim was unpaid. Chambers v. Williams Bros. Lumber Co., 80 Ga. App. 38, 42 (55 SE2d 244); One-In-All Corp. v. Fulton Nat. Bank, 108 Ga. App. 142, 144 (132 SE2d 116). The plaintiff was entitled to a personal judgment against the defendant in the amount shown by that evidence and as well to have it made a special lien on the property described in the petition.

Felton, C. J., and Eberhardt, J., concur. Argued May 2, 1967 — Decided May 29, 1967. Howard & Storey, Robert W. Storey, for appellant.

The trial court erred in entering judgment for the defendant.

Judgment reversed.