David v. Marbut-Williams Lumber Co.
| Decision Date | 23 April 1924 |
| Docket Number | 15159. |
| Citation | 122 S.E. 906,32 Ga.App. 157 |
| Parties | DAVID v. MARBUT-WILLIAMS LUMBER CO. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
It is a condition precedent to a materialman's lien that an action for the recovery of the amount of the claim shall be commenced "within twelve months from the time the same shall become due."
Where a materialman brought suit on November 14, 1921, against a contractor and the owner of the real estate improved, for a personal judgment against the contractor and the foreclosure of a lien against the realty, alleging that the claim for the materials matured in December, 1920, and the jury returned a verdict finding against the contractor "the sum of $1,126.80, with interest from November 14, 1920, to date at 7 per cent. per annum, with a lien against the property," a motion by the owner (not a motion for a new trial) "designed to prevent the entering of judgment * * * setting up a lien," upon the ground that the finding of the jury as to interest adjudicated the debt to have become due on November 14, 1920, or some day prior thereto, and thus that the filing of the action on November 14, 1921, was not within 12 months from the maturity of the claim, was properly overruled; the plaintiff having written off the interest allowed by the verdict for the period anterior to the alleged maturity. It was proper also to overrule a subsequent motion in arrest of judgment based upon the same ground. The verdict presumably contained error (if any at all) only in respect to interest.
Error from Superior Court, Fulton County; W. D. Ellis, Judge.
Suit by the Marbut-Williams Lumber Company against Mrs. E. C. David. Judgment for plaintiff, and defendant brings error. Affirmed.
Slaton & Hopkins, of Atlanta, for plaintiff in error.
Geo. B Rush, of Atlanta, for defendant in error.
"Before a materialman's lien for materials furnished to a contractor to improve the real estate of another can be foreclosed, there must be a judgment for the price of such materials in his favor, against the contractor, or the contractor must be sued concurrently with the owner of the property improved, in the foreclosure proceedings." Pike Lumber Co. v. Mitchell, 132 Ga. 675, 676, 64 S.E. 998, 26 L.R.A. (N. S.) 409. The materialman in the instant case adopted the "concurrent" proceeding. The petition was filed on November 14, 1921, and alleged among other things, that it was brought within 12 months from the time the claim for the materials became due; namely, in the previous December. The owner of the realty answered the suit, and denied each of the plaintiff's allegations except as to her residence and her ownership of the realty. Upon the trial the jury returned a verdict finding for the plaintiff against the contractor "the sum of $1,126.80 with interest from November 14, 1920, to date at 7 per cent. per annum," with a lien therefor against the realty. The owner thereupon filed a motion, described by her counsel as one "designed to prevent the entering of judgment against her setting up a lien," upon the ground that the finding of the jury as to interest adjudicated the debt to have become due on November 14, 1920, or some day prior thereto, and thus that the filing of the action on November 14, 1921, was not within 12 months from the maturity of the claim. The plaintiff wrote off the interest as allowed in the verdict for the period anterior to the alleged maturity The motion was thereupon overruled. After judgment was entered setting up the lien for the amount of the verdict less the interest written off, the owner moved in arrest of judgment upon the identical grounds of the previous motion. She brings exceptions to the overruling of both motions.
It is a condition precedent to a materialman's lien that an action for the recovery of the amount of the claim shall be commenced within 12 months from the time the same shall become due. Park's Code, § 3353, subsec. 2 (a). Compare Lombard v. Trustees, 73 Ga. 322; Chamlee Lumber Co. v. Crichton, 136 Ga. 391, 71 S.E. 673; Massachusetts Bonding Co. v. Realty Trust Co., 142 Ga. 499, 83 S.E. 210; Civil Code 1910, § 3365.
In computing a period of time, embracing months or years, within which a party may exercise a right, the rule as laid down in the Civil Code, § 4(8), as to the computation of a number of days, does not apply (Peterson v. Georgia R. Co., 97 Ga. 798, 25 S.E. 370; Jones v. Kern, 101 Ga. 309 [1], 28 S.E. 850; Rusk v. Hill, 117 Ga. 722 [1], 45 S.E. 42), and in cases of tort both the day of the injury and the day of the filing of the suit must be counted in determining whether the action was filed within the period of limitation (Peterson v. Georgia R. Co., supra). See, also Brown v. Emerson Brick Co., 15 Ga.App. 332, 83 S.E. 160; Texas Co. v. Davis, 157 Ga. 538, 122 S.E....
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