Zappa v. Ewing , 116 Ga. App. 152 ( 1967 )

Felton, Chief Judge.

1. The principal contention of the appellant is that the court should have sustained his general demurrer to the lien foreclosure, which judgment, he contends, would have precluded the appellee from again foreclosing his lien and that the voluntary dismissal permitted him to again foreclose his lien. In this contention the appellant is in error for the reason that a foreclosure of a lien for labor on real property in such a case as this, where the labor was performed on real property, was a mistaken remedy rather than the election of an inconsistent remedy which would bar another proper foreclosure. Southern Fed. S. & L. Assn. v. Firemen’s Benev. Assn., 72 Ga. App. 663, 667 (34 SE2d 674) and cases cited. However, the general demurrer of the defendant should have been sustained for the reason that the purported lien proceeding did not allege whether the lien was sought against real property or personal property. Construing the lien proceeding against the appellee it alleges that the lien is sought against real property and there is no provision of law for a summary judgment in such cases. Allred v. Hale, 84 Ga. 570 (1) (10 SE 1095); Code Ann. § 67-2002.

2. The foregoing ruling renders nugatory the judgment dismissing the lien proceedings on motion of the appellee. However, since there is no enumeration of error on the court’s refusal to allow appellant to proceed on his cross action, it is immaterial how and for what reason the lien proceeding was dismissed. In such a situation we reverse the judgment overruling appellant’s general demurrer to the lien proceeding with direction that the court dismiss the lien proceeding without prejudice to either party to pursue his respective rights, affirmative and defensive, as to the issues existing in the premises.

Judgment reversed with direction.

Hall and Eberhardt, JJ., concur.