Dixon v. Williams

• Decision Date: 01 March 1889
• Citation: 9 S.E. 468,82 Ga. 105
• Parties: Dixon v. Williams.
• Court: Georgia Supreme Court

9 S.E. 468

(82 Ga. 105)

Dixon

v.Williams.

Supreme Court of Georgia.

March 1, 1889.

Execution—Claim by Third Person—Laborer's Lien.

1. A claimant of personal property levied on under execution on foreclosure of a laborer's lien is not concerned as to the regularity or validity of the foreclosure proceedings, and cannot move to have them dismissed. The only proper motion for him to make is to dismiss the levy as to the property shown to be his.

2. An affidavit is sufficient which seeks to foreclose a laborer's lien in a summary manner, not against land, but against the property of the defendant, and where the execution is levied upon personal property only; and the fact that the clerk in issuing it inserted therein the words "lands and tenements" does not vitiate the execution as to the personal property.

Error from superior court, Brooks county; Hansell, Judge.

Before the ordinary of Brooks county, on August 14, 1885, C. N. Williams made affidavit that G. G. Potter, of said county, was indebted to him $328.53 principal, and $9.58 interest, "for manual labor performed by said Williams and his minor son, Alonzo Williams, who is a minor, and worked for said Potter, by consent of his father, but his said father, C. N. Williams, was to receive the pay for his said son. Said C. N. Williams avers that he and his said son worked for said G. G. Potter as laborers in and about a factory run by said Potter in Brooks county, Ga.; that, of the $328.53 due said Williams for said labor, the sum of $253.53 is due for affiant's own labor in and about said factory, and the sum of $75 is due affiant for the labor of affiant's said son in and about said factory. Affiant avers that as such laborers he and his said son faithfully performed and completed his contract of labor with said Potter; that since said sum became due he demanded payment of same of said Potter, who refused to pay said debt, and still refuses to pay the same." Affiant further avers "that he makes this affidavit within 12 months of the time said sum of money became due, and for the purpose of foreclosing his laborer's general lien upon the property of said G. G. Potter, now in said county of Brooks." This affidavit was filed in the office of the superior court clerk, upon the same day; and upon the same day the clerk issued execution against "the goods and chattels, lands and tenements of G. G. Potter" for the full sum of principal and interest claimed, and also for costs, "which amounts C.N. Williams has this day recovered against said G. G. Potter by a foreclosure of a laborer's lien for principal, interest, and costs;" the execution being made returnable to the ensuing term of the superior court of said county. Upon the same day this execution was levied upon certain machinery, waste, and other personalty. Potter made defense to this foreclosure, denying the indebtedness, denying that plaintiff was a laborer, denying that he ever made any contract for the labor of Alonzo Williams, and denying that any demand for the payment of the debt was ever made upon him. The issue thus made was found against him. W. N. Dixon then interposed a claim to the property levied on. Upon the trial of the claim case claimant moved to dismiss the affidavit, execution, and levy for the following reasons: (1) Because the proceeding was not in conformity with the law authorizing the enforcement of liens, but was informal and illegal; (2) because plaintiff sought to recover for the labor of his son, aminor; (3) because of a misjoinder in proceeding for the recovery for his own labor as well as for his son's; (4) because there was no allegation setting forth the terms of the contract, as required by law; (5) because, in making the usual oath for the enforcement of his liens against personalty, he further claims in his affidavit that his lien extended to all the property of defendant in the county of Brooks; (6) because the execution did not follow the affidavit; (7) because the execution was illegal in being...