Loudon v. Coleman , 62 Ga. 146 ( 1878 )

Bleckley, Justice.

1. The state of the record considered, the grounds of- the motion in arrest of judgment were not appropriate to such a motion. A motion in arrest can properly be based on nothing but what is apparent on the face of the record or pleadings. Code, §3587. As to the points made on the verdict, they are .answered by the fact that the verdict, construed in the light of the pleadings, and considering the nature of the issues on trial, is not only intelligible, but sufficiently definite and certain.' It would not be difficult to enter up, on the verdict, a judgment which would carry out the intention of the jury as to all the parties.

2. The motion in arrest of judgment was made and overruled at the term of the court at which the verdict was rendered. The motion for a new trial was then made during the same term. In Georgia practice it is allowable to follow an unsuccessful motion of the former class with a motion of the latter class. 59 Ga., 105; 55 Ib., 667; 23 Ib., 493. The Code restricts motions for a new trial, except in extraordinary cases, to the term at which the trial was had, (Code, §3719); but no other restriction in point of time is imposed.

3. The order of argument in a case like the present is subject to the sound discretion of the presiding judge, all the claimants to the fund having introduced evidence.

4. The necessary expenses of a receivership will fairly include a reasonable compensation to counsel for bringing the fund into court, or securing it for the receiver. Such compensation is payable out of the fund.

5.. If the verdict could be held correct, any error in entering judgment thereon would be matter for exception, but not for a motion for a new trial. Of course, if the whole vice were in the judgment, it could be purged out without trying the case over.

6. The failure of the verdict to mention any lien was not fatal to it. That the successful claimants each claimed as a lien creditor, and not otherwise, was apparent on the face of the record, and the character of each lien was set forth. The verdict is to be construed as finding, by necessary implication, a lien to the extent of the sum of money' awarded to each claimant.

7. We have compared the charge of the court in respect to the lien set up by the Columbus Iron Works Company as a machinist, with the rulings of this court upon the former writ of error in this same case (59 Ga., 653), and find no substantial difference between them. It seems to us that the charge conforms to our previous rulings, in general sense and substance, and closely enough for all practical purposes.

8. The effort of the other creditors to drive the machinist against the realty, and thus leave-the personalty entirely unaffected by the machinist’s lien, cannot and ought not to succeed. This is a money rule, and there is a fund in court to be distributed. In so far as the lien of the machinist is the highest and best lien upon that fund, it ought to take without reference to what might be readied by other and further operations against property not yet sold, or even condemned. If creditors who have junior liens upon the fund wish to have the benefit of the machinist’s lien as against this other property, let them advance the money necessary to control this lien, and then pursue the property at their own risk and expense. In this particular case, there is another feature of great moment, and that is, that the realty does not belong to the debtor, but to a lessor; and even if this lessor’s property could be taken to pay the lessee’s debt for machinery, under the special provisions of our lien laws, the holder of the lien, it would seem, ought not to be compelled to resort to it. There may be a mere legal liability of the lessor’s property, but if so, there would be no inequity to the other creditors of the lessee not to enforce it. It will be seen that the question presented is not as to pursuing the lessee’s term in the leased premises, but the premises themselves.

9. The record of the machinist’s lien was in time, as to the price of the engine and the cost of putting it up, etc., if the record of the lien was within three months after the work contracted for was completed. The contract for the work, it would seem, was not separate from the contract of sale, but a part of one and the same contract. This is the great fact. The sale was not an independent transaction, but was connected with a stipulation for work. To perform the contract fully, required the completion of the work, as well as the delivery of the engine. Arrangements about the price were immaterial on the question now before us. Many particulars in respect to price, mode of payment, time of payment, etc., may be embraced in one contract; for a contract may be carved into various specifications and subordinate parts.

10. In the ai’gument here in behalf of the machinist, it was conceded that the open account, except for putting the engine in position, etc., could not be so connected with the purchase of the engine as to make the whole one contract. For this reason, the main body of the account was put out of the case. The unpaid portion of the price of the engine was the main sum for which a lien was insisted upon. Now this lien, as we gather from the record, attached upon about one fourth-of the property sold, taking the proceeds of the sale as the basis of value. These proceeds of sale went into the hands of John King as the first receiver, and, by reason of his bankruptcy, about two-thirds of the amount was lost. In other words, the second receiver collected from the estate of King about one-third of the whole fund with which King was chargeable. The court and jury seem to have treated the lien of the machinist as attaching to pretty much the whole of this one-third. This we think was an error, and the only substantial error which we have discovered. The lien should be considered as attaching to the same proportion of the part of the fund saved as it bound of the original fund — say, one-fourth. If money belonging to several persons be mixed, and some of it be lost,Jeach has a right to his pro rata share of the amount saved. Benjamin on Sales, 553. The principle, we think, applies to lien as well as to title. It cannot be assumed that the part of the fund upon which the lien did not rest was the part out of which the whole loss happened. Upon another trial, it will be incumbent on the jury to ascertain exactly how much of the fund in the hands of King was produced by the property which was subject to the machinist’s lien; and that proportion should be kept steadily in view in dividing the remnant of the fund with other claimants, including the assignee in bankruptcy-

judgment reversed.