Griffin Bros. v. Gainesville Iron Works , 144 Ga. 840 ( 1916 )

Evans, P. J.

R. I. Mealor, using the trade-name of the Gaines-ville Iron Works, brought a petition against W. H. Smith, a contractor, and Griffin Brothers, the owners of the real estate alleged to have been improved, to foreclose a materialman’s lien for material used by the contractor in the improvement. In his petition he alleged that the contractor “until recently was a resident, of said county, but recently fled the realm, and is now a non-resident of said State, and his location outside of said State is unknown.” There was a prayer for process against the owners of the real estate, and a prayer that service be perfected by publication on the contractor, and for judgment for the amount sued for, with costs, to be decreed a special lien on the property. Process against both the landowners and the contractor was annexed by the clerk. The petition was served upon the owners of the real estate, and an entry of non est inventus was made as to the contractor. The court passed an order directing that service on the contractor be perfected by publication; and a further order reciting that service had been perfected on the contractor as required by law, and directing that the factum of service be entered of record. The owners of the real estate filed a plea denying the substantial allegations of the petition; the contractor did not appear or plead. On the trial the evidence disclosed that the plaintiff furnished to the contractor the material described in his claim of lien; that the material entered into the construction of the store on the property described in the claim as belonging to the defendants whose property was alleged to have been improved; the reasonable value of the material; that the claim of lien was in proper form, and had been recorded as provided by the statute; and that the suit was brought within the statutory period. The court directed a verdict in favor of the plaintiff against both defendants for the value of the material, and also finding for the plaintiff a special lien against the property improved. A motion for new trial was made and overruled, and the property owners bring error.

1. The court directed a. verdict in personam, for the amount of the debt, against both the contractor and the owners of the real estate alleged to have been improved. This was error. In a proceeding to foreclose a materialman’s lien for material furnished a-contractor, the owner of the improved premises is not liable in personam to the materialman. Langley v. Simmons, 143 Ga. 699 (85 S. E. 833).

2. So much of the verdict as finds a special lien against the premises of the landowners is illegal, for the reason that under repeated rulings of this court such a judgment can not be obtained unless the materialman has previously recovered a valid judgment against the contractor, or recovered a judgment against him in personam in the same action. Mauck v. Rosser, 126 Ga. 268 (55

S. E. 32), and cases cited. The facts in the case of Clayton v. Farrar Lumber Co., 119 Ga. 37 (45 S. E. 723), were substantially similar to those of the present case; and it was there ruled: “In a suit to foreclose a lien on real estate, for. materials furnished to a contractor and used by him in improving said real estate the contractor is a necessary party; and where no process is prayed against such contractor, though he may be referred to in the petition as one of the defendants, and though the clerk annexes a process against ‘the defendants’ generally, he is not thereby made a party, and a demurrer setting up these objections should be sustained.” It is contended by the defendant in error, in the first place, that the contractor was a party to the case, and had been served by publication under order of the court, and is therefore bound by the judgment. Even concede that the contractor was a party, the only relief prayed against him is for a personal judgment; and the rule is universal that a judgment in personam can not be obtained against a defendant on substituted service. Pennoyer v. Neff, 95 U. S. 714 (24 L. ed. 565). It is further contended by the defendant in error that the objection that the contractor is not a party can be raised only by special plea or demurrer pointing out the nonjoinder, and can not be raised on a motion for new trial, raising the point as to the sufficiency of the evidence to support the verdict. We can not agree with this contention. It is indispensable to the foreclosure of a materialman’s lien against the owner of the real estate improved that there be a valid judgment against the contractor. The materialman may sue the contractor separately and obtain his judgment, and thereafter foreclose his lien against the owner of the real estate alleged to have been improved; or, if the contractor is a resident of the county where the property against which the lien is sought to be established is-located, the materialman may. proceed in the same action against the contractor and the owner of the real estate, and recover a judgment in personam in that action against the contractor. But, whatever course of procedure is adopted, it is indispensable to the materialman’s obtaining a judgment of foreclosure of his lien against the property that he have a valid judgment against the contractor. As no valid judgment against the contractor can be obtained in this case, it follows that the verdict directed by the court is without evidence to support it.

Counsel for defendant in error ask that we review and overrule the several decisions holding the proposition that there can be no valid judgment of foreclosure of a materialman’s lien for materials furnished to a contractor, upon the real estate improved with such materials, in the absence of a valid judgment in his favor against, the contractor for the price of such materials. The principle announced in these decisions is a construction of the statute giving to materialmen a lien. This construction was placed upon the statute in the case of Lombard v. Trustees, 73 Ga. 324, decided in 1885, and has been consistently followed for a period of more than thirty years. In the meantime many legislatures have convened, and there has been no amendment of the law so as to change the construction put upon the statute by this court; and under these circumstances we decline to overrule a line of decisions adhering to the construction as originally put upon the statute.

Judgment reversed.

All the Justices concur.