Southern Railway Co. v. Crawford & Slaten Co. , 46 Ga. App. 424 ( 1933 )

MacIntyre, J.

1. Section 3353(2%) of Micliie’s (1926) Code, prescribing the method of foreclosing the liens specified in § 3352 of the same code, makes mandatory “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;” but the requirement of the statute as to the time within which the “action” shall be commenced relates to the action in personam against the contractor, and not to the subsequent proceeding against the landowner. Lombard v. Trustees &c., 73 Ga. 322, 324. See also Buck v. Tifton Mfg. Co., 4 Ga. App. 695, 696 (62 S. E. 107).

2. Therefore, in the case at bar, where the action against the contractor was begun within the time specified in the statute, but the proceeding to establish the lien against the property owner was not brought within such time, the trial judge did not err in overruling the general demurrer to the petition brought against the property owner, said demurrer being that “suit to foreclose this lien was not filed against this defendant within the twelve months allowed by statute.”

3. In view of the fact that the special demurrer attacking the petition upon the ground that it does not show the date on which the petitioner furnished the material to the contractor, or the date of the completion of the contract with the contractor, was neither argued nor insisted upon in the brief of counsel for the plaintiff in error, such demurrer will be treated as abandoned and will not be passed upon.

Judgment affirmed.

Broyles, O. J., and Guerry, J., concur.