Carter-Moss Lumber Co. v. Short , 66 Ga. App. 330 ( 1941 )

1. To make good or perfect the materialman's lien specified in the Code, § 67-2001, it is essential, under § 67-2002, not only that there be (1) a substantial compliance by the alleged lienor with his contract and (2) the recording of his claim of lien within three months, but (3) that an action for recovery of the amount of his claim be commenced within twelve months from the time the same became due. Before the rendition of a judgment in favor of the claimant the claimed lien is only inchoate, and the failure of the claimant to perfect his lien as provided by the statute vitiates it, not only as against third persons, but as against himself.

2. A judgment perfecting such a claimed lien of a materialman is within the statute (Code, § 110-1001) providing that a judgment shall become dormant under circumstances therein named.

3. Under the facts shown by the record the court did not err in sustaining the defendant's affidavit of illegality and in dismissing the levy.

DECIDED DECEMBER 5, 1941. Carter-Moss Lumber Company, a partnership composed of J. P. Carter and S. J. Moss, sold to Mrs. Edna B. Short, in the years 1920 and 1921, building material which went into the construction and improvement of certain real estate in Clarke County. On November 7, 1921, the lumber company filed in the office of the clerk of the superior court of Clarke County their claim of lien upon such real estate for the balance due them by Mrs. Short for such building material. Such claim of lien was recorded on that date. On October 17, 1922, the lumber company brought suit in the city court of Athens against Mrs. Short for the purchase price of such building material and for the foreclosure of their materialman's lien upon the real estate. The petition alleged that the plaintiffs furnished to the defendant such building material for the construction and improvement of the described property, that the contract had been completed and that their claim of lien had been filed and recorded, and prayed for a general judgment against the defendant and for the establishment of a materialman's lien upon the real estate for the balance due on the purchase price of the building materials sold and furnished to the defendant. On November 21, 1922, judgment was rendered in this suit in favor of the plaintiffs and against Mrs. Short for the amount claimed, and in the judgment it was "further ordered that this judgment be and the same is hereby declared, set up and established as a special lien" upon the real estate involved. Execution was issued on this judgment on November 22, 1922, and on the same date the execution was placed upon the general execution docket of the superior court of Clarke County. This execution commanded that the sheriff "of the goods and chattels, lands and tenements generally of Mrs. Edna B. Short, and especially of the following described property [describing the real estate for the improvement of which the building materials were furnished by the plaintiffs to the defendant] . . you cause to be made" principal and interest of the judgment rendered together with the costs of court. There appears on this execution, under date of May 15, 1924, a receipt signed "E. J. Crawford, clerk," as follows: "Received of plff. in fi. fa. $14.85 cost in full of this fi. fa. to date."

On August 7, 1940, the sheriff of Clarke County levied the above execution upon the real estate described in the execution, reciting in the entry of levy as follows: "I have this day levied the within fi. fa. and the judgment upon which the within fi. fa. was issued upon the following described property . . levied on as the property of the defendant in fi. fa., Mrs. Edna B. Short." To this levy the defendant in execution interposed an affidavit of illegality on the ground that the "execution is proceeding illegally because the judgment upon which it is based is dormant and the execution is dormant because no entry of any kind has been made on the execution [except the levy above referred to] since May 15, 1924, and no entry of any kind has been made on the general execution docket since November 23, 1922, and no action of any kind has been taken since the issuance of such execution to keep the same alive or to revive the judgment upon which it was based."

The case was tried before the judge without the intervention of a jury. On February 27, 1941, judgment was rendered sustaining the affidavit of illegality and dismissing the levy. It was recited in the judgment that the court "finds that the execution is proceeding illegally because said execution and the judgment upon which the same is based are now and were at the time of the levy dormant." To this judgment the plaintiffs excepted. They assigned such judgment as error "upon the ground that same was contrary to law and that the execution and judgment of foreclosure of lien was not dormant and . . that the execution, judgment, and decree of the court of foreclosure of plaintiffs in error's materialman's lien is a valid and subsisting judgment and decree, and is not barred by the dormancy of judgments acts, and same should have been ordered to proceed and the affidavit of illegality should have been overruled." The sole question here presented is whether or not a judgment based on the foreclosure of a materialman's lien is exempt from the operation of the dormant judgment acts as codified in part in Code § 110-1001 as follows: "A judgment shall become dormant and shall not be enforced . . 2. Unless entry is made on the execution by an officer authorized to levy and return the same and such entry and the date thereof are entered by the clerk on the general execution docket within seven years after the issuance of the execution and its record; or 3. Unless a bona fide public effort on the part of the plaintiff in execution to enforce the execution in the courts is made at such times and periods that seven years will not elapse between such attempts or between such an attempt and a proper entry." In the present case the levy of the execution was made on August 7, 1940. The judgment on which the execution issued was rendered on November 21, 1922, and the execution was issued on the next day and placed upon the general execution docket of the superior court of the county. So far as appears from the execution there was no levy thereof or other effort to enforce the judgment until the levy of the execution on August 7, 1940.

The plaintiff contends that the judgment sub judice was exempt from the provisions of the Code section because it merely declared and established a lien which was already in existence; that such lien was not first established by the judgment but began to exist when the material was furnished to the owner of the property. The Code, § 67-2301, provides that the lien of a materialman on real estate "shall be foreclosed, when not otherwise provided, as follows: 1. By a compliance with his contract by the person claiming the lien and recording his claim, and the commencement of suit therefor, according to the provisions and requirements of section 67-2002. 2. In declaring for such debt or claim the claimant of the lien shall set forth his lien, and the premises on which he claims it; and if the lien shall be allowed, the verdict shall set it forth, and the judgment and execution be awarded accordingly." The Code, § 67-2001, provides that "all contractors, materialmen, and persons furnishing material for the improvement of real estate . . shall each have a special lien on such real estate," etc. § 67-2002 provides how the lien specified in § 67-2001 may be made good, and states that the liens there mentioned must be "created and declared in accordance with the following provisions, and on failure of any of them the lien shall not be effective, viz.: 1. A substantial compliance by the party claiming the lien with his contract for building, repairing, or improving, or for materials or machinery furnished or set up, as set forth in said section. 2. The recording of his claim of lien within three months after the completion of the work [in the form specified]. . . 3. The commencement of an action for the recovery of the amount of his claim within twelve months from the time the same shall become due." The lien thus provided for in favor of a materialman is not absolute, but must be completed, made good, or perfected in accordance with the provisions of the law above quoted. It is only inchoate or incipient until a judgment finally perfects it. "In 27 Cyc. 110 it is said: ``The doing of work or furnishing of materials gives merely an inchoate lien or the right to acquire a lien, and the statute prescribes the steps to be taken to perfect such lien.' Lien laws are of course to be strictly construed, and one who claims a lien must bring himself within the law. Palin v. Cook, 125 Ga. 442 (54 S.E. 90). The mechanic's lien, as to realty, is in derogation of common law, and is to be construed strictly and extended no further than its words plainly import. Fox v. Rucker, 30 Ga. 525. The failure of a mechanic or contractor to perfect his lien, as provided by statute, vitiates the lien, not only as against third persons, but, under our decisions, as against the owner himself.Cherry v. North South Railroad, 65 Ga. 633, 635. To ``make good' the contractor's lien, the statutes must be strictly complied with." Oglethorpe Savings Trust Co. v. Morgan,149 Ga. 787, 792 (102 S.E. 528). See Kwilecki v. Young,180 Ga. 602 (180 S.E. 528). Once established by judgment, however, the lien's efficacy relates back to the date of the completion of the contract. Middle Georgia Lumber Co. v. Hunt, 53 Ga. App. 578,580 (186 S.E. 714); Oglethorpe Savings Trust Co. v. Morgan, supra. It necessarily follows from the above that the judgment rendered on November 21, 1922, did not, as contended by the plaintiffs in error, merely declare or recognize a lien which was absolute theretofore, but that such judgment rendered perfect or made good for the first time the lien claimed by the materialman, and, accordingly, was within the statute providing that, under the circumstances of this case, such judgment would become dormant after seven years. The trial court did not err in sustaining the defendant's affidavit of illegality and in dismissing the levy.

Where a lien is created by contract, for example, as in a mortgage, and where no judgment is necessary to make good or establish such a lien, the statute as to dormant judgments does not apply. Cases dealing with that kind of a lien, such as Butt v. Maddox, 7 Ga. 495, cited and relied on by the plaintiff in error, are distinguishable. See Collier v. Bank of Tupelo,190 Ga. 598 (10 S.E.2d 62).

Judgment affirmed. Sutton and Felton, JJ., concur.