Porter v. Lively & McElroy ( 1872 )

Warner, Chief Justice.

On the 10th March, 1871, an execution was issued on an affidavit made by Lively & McElroy, the owners of a steam saw-mill, to enforce a lien for lumber sold and furnished to one Mobley, of the value of $62 92, which lumber was to fence and enclose the place, and to build a stable or cow-house on the lot, upon which Mobley then resided, and claimed, as the owner; that the money was due for the lumber since the 10th day of May, 1870, that demand had been made for the payment of the same, which was refused, but did not state on whom the demand for the payment of the lumber was made and refused, nor did the affidavit state that the plaintiff’s steam saw-mill is located in the State of Georgia. The execution was levied on the property described in the affidavit, by the sheriff. Afterwards, an affidavit was filed by Porter, claiming to be the owner of the premises on which the fixtures were erected, with the lumber furnished by the plaintiffs to Mobley, denying their lien for the following reasons : That Mobley held the premises under a bond for title from him; that he is the legal owner of the same; that no part of the purchase-money therefor had been paid; that about the 1st December, 1870, the contract for the sale of the land, between him and Mobley, was rescinded, he taking up his bond, first paying to a party to whom Mobley had pledged his bond, the sum of $592 95, when Mobley gave up to Porter all right and claim to the premises. On the trial of the case, it was agreed by the respective parties to submit the questions involved in it to the presiding Judge without the intervention of a jury. The counsel for Porter made a motion to dismiss plaintiffs’ affidavit, because it was not alleged therein that their steam saw-mill was located in the State of Georgia, and because the affidavit of the plaintiffs did not state on whom the’ demand for payment was made. The Court overruled the motion to dismiss plaintiffs’ affidavit, and, on motion of plaintiffs’ counsel, dismissed Porter’s affidavit, on the ground that he had no right to arrest the proceedings, under the plaintiffs’ fi. fa., in the manner which he sought to do; whereupon the defendant, Porter, excepted.

1. In our judgment, the plaintiffs should have made a demand of payment for the lumber, not only of Mobley, to whom the lumber was furnished, but also of Porter, the assignee of Mobley, if he was in possession of the premises, on which the fixtures were erected, with their lumber, which had not been paid for, and should have alleged a refusal to pay for the same on the part of both.

2. As these summary remedies are to be strictly construed, the plaintiffs should have alleged, in their affidavit, that their steam saw-mill was located in the State of Georgia, inasmuch as the lien is only given to the owners of steam saw-mills located in this State, by the Act of 1868, and the Amendatory Act of 1870. If a demand had been made on Porter for payment of the lumber, and payment refused, with an averment that he was in possession of the premises, then he would have been a proper party to have made the counter-affidavit, contesting the plaintiffs’ lien. Let the judgment of the Court below, be reversed.

Judgment reversed.