Allied Elec. Contractors, Inc. v. Kern & Co., Inc.
Decision Date | 23 October 1987 |
Docket Number | No. 74888,74888 |
Citation | 184 Ga.App. 747,362 S.E.2d 452 |
Parties | ALLIED ELECTRICAL CONTRACTORS, INC. v. KERN & COMPANY, INC. |
Court | Georgia Court of Appeals |
Michael J. Kramer, Marietta, for appellant.
Robert K. Picker, Jr., Atlanta, for appellee.
Appellant subcontractor brought this action for foreclosure of a materialman's lien against appellee landowner and also the general contractor, Contel Construction Company. Appellant has been unable to locate Contel Construction in order to effect service of process upon it. Appellee answered the complaint and subsequently moved for and was granted summary judgment. The trial court found substantial compliance with the several statutory prerequisites to foreclosure of the subject lien "with the exception that the notice clearly was not executed under oath."
In order to make good a materialman's lien such as the one in this case, the lien OCGA § 44-14-361.1(a)(3). " " Kwilecki v. Young, 180 Ga. 602, 604, 180 S.E. 137 (1935). King v. Rutledge, 208 Ga. 172, 175, 65 S.E.2d 801 (1951).
The notice in this case was signed by appellant's counsel but was not executed under oath. Appellant argues that due to counsel's status as an officer of the court, he was not required to execute the notice under oath. See generally Whitehead v. State, 96 Ga.App. 382(1), 100 S.E.2d 139 (1957). We find no support whatsoever for this proposition in the face of statutory language to the contrary. See, e.g., OCGA §§ 18-4-61; 44-7-50; 44-14-231 (requiring a statement of facts by an...
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...does not. Although the language in Yates is dicta, the rule of strict construction of lien provisions, Allied Elec. Contractors v. Kern & Co., 184 Ga.App. 747, 748, 362 S.E.2d 452 (1987), and allowance of preliminary notice of lien by OCGA § 44-14-361.3 support the validity of that view. Ou......
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