Chamlee Lumber Co. v. Crichton

• Decision Date: 14 June 1911
• Parties: CHAMLEE LUMBER CO. v. CRICHTON.
• Court: Georgia Supreme Court

71 S.E. 673

136 Ga. 391

CHAMLEE LUMBER CO. v. CRICHTON.

Supreme Court of Georgia

June 14, 1911

Syllabus by the Court.

An essential element in the creation of a lien of a materialman is his foreclosure of the same within 12 months from the maturity of his claim. If he forecloses within 12 months, and dismisses his action, it cannot be renewed within 6 months thereafter, under Civil Code 1910, § 4381, unless the renewal be also within 12 months of the maturity of the claim. That Code section applies to ordinary suits and remedies, and not to suits to forclose a materialman's lien on real estate.

Error from Superior Court, Fulton County; J. T. Pendleton, Judge.

Action by the Chamlee Lumber Company against E. C. Crichton. Judgment for defendant, and plaintiff brings error. Affirmed.

Geo Gordon, for plaintiff in error.

J. L Hopkins & Sons, for defendant in error.

EVANS P.J.

A materialman, furnishing material for the improvement of real estate, is given a lien upon the real estate so improved but, in the language of the statute, "to make good [the materialman's lien] it must be created and declared in accordance with the following provisions and on failure of either the lien shall cease." The provisions referred to comprehend three vital and essential things: The completion of the contract to furnish material, the record of the claim of lien within 3 months, and the institution of a suit of foreclosure within 12 months from the maturity of his claim. Civil Code 1895, § 2804. In transferring this section to Civil Code 1910, § 3353, certain errors occurred: Subparagraph 3 was entirely omitted, and paragraph 4 was erroneously numbered 3. The materialman in this case began his suit within 12 months of the maturity of his claim of lien, but voluntarily dismissed it. He renewed his action within 6 months of the dismissal of his former action, but after the expiration of 12 months from the maturity of his claim. The primary question is whether the renewed action stands on the same footing as the original action, so as to bring it within the statutory requirement that the foreclosure of the lien be commenced within 12 months of the maturity of the claim.

Civil Code 1910, § 4381, is as follows: "If a plaintiff shall be nonsuited, or shall discontinue or dismiss his case, and shall recommence within six months, such renewed case shall stand upon the same footing, as to limitation, with the original case; but this privilege of dismissal and renewal shall be exercised only once under this clause." This Code section appertains to the remedy, and not to the cause of action. It is applicable to those cases where the defendant may plead the statute of limitations (by demurrer or by special plea) at his pleasure, and where the element of time does not enter into the creation of the cause of action. This court has repeatedly held that statutory liens of this character are in derogation of common law, and the statute must be strictly construed. Indeed, it has been held that the mere fact that a materialman's claim of lien was filed for record before the expiration of three months would not suffice to meet the statutory requirement of...