Loudon v. Coleman

• Court: Georgia Supreme Court
• Writing for the Court: BLECKLEY
• Citation: Loudon v. Coleman, 59 Ga. 653 (Ga. 1877)
• Decision Date: 31 August 1877
• Parties: John Loudon, assignee, et al, plaintiffs in error. v. Charles Coleman, receiver, et al, defendants in error.

59 Ga. 653

John Loudon, assignee, et al, plaintiffs in error. v. Charles Coleman, receiver, et al, defendants in error.

Supreme Court of the State of Georgia

(August Term, 1877.)

[COPYRIGHT MATERIAL OMITTED] Machinists' lien. Corporations. New trial. Parties. Practice in the Superior Court. Practice in the Supreme Court. Charge of Court. Before Judge Crawford. Muscogee Superior Court. May Term, 1877.

Reported in the opinion.

*R. J. Moses; C H. Williams, for plaintiffs in error.

Peabody & Brannon; Blandford & Garrard; G. E. Thomas, lor defendants.

BLECKLEY, Judge.

After this litigation was remanded to the court below by the judgment of this court in 56 Ga., 150, another trial took place, which resulted in awarding the whole fund to the Columbus Iron Works Company. London, the assignee in bankruptcy, and Mrs. Smith, plaintiff in the distress warrant for rent, moved for a new trial, and the motion was overruled.

1. The claim of the Columbus Iron Works Company was a recorded lien in favor of that company as a machinist. The company is a corporation. Objection is made, that as the law stood at the date of this transaction (1872), the lien of a machinist could not arise in favor of a corporation. The statute (Irwin's Code, sec. 1966) declares, "Any machinist who may furnish or put up, in any county in this state, any steam mill or other machinery, or who may repair the same, shall be entitled to the same lien on such machinery and the premises to which the same may be attached, and may enforce such lien in the same manner, and with the like benefits, privileges and restrictions, as those which apply to mechanics." Machinist, according to Webster, is "a constructor of machines and engines, or one well versed in the principles of machines." Though a corporation cannot answer to the latter of these two definitions, it can to the former; not it is true, in a strict sense, but in a general sense. A corporation, considered in itself, can construct nothing—can do nothing. It must employ the faculties of natural persons, for it has no intellect, will, or organs of its own. It is, in fact, a myth, a fiction, and has no existence but in the imagination of the law. The law calls it a creation of the sovereign authority, and treats it as a person. It may be a carrier, *a banker, a manufacturer, an insurer, etc. Why, then, may it not be a machinist? If it be said it has no skill in machinery, and cannot construct a machine, the observation, literally taken, is quite true. But can it transport a bale of goods, or sign a bank note, or weave cloth, or execute apolicy of insurance? By itself it cannot, but by its agents and employees it can. Through the like instrumentalities, it can construct machines and repair machinery. The skill it employs and pays for is, in contemplation of law, the same as its own. It is thus within the reason and spirit of a statute, whenever the circumstances in which it is placed are identical with those of natural persons expressly included in the statute. 5 Ga, 541, et seq Of course, for the Columbus Iron Works to have the lien of a machinist, the business should be within its charter. The charter is not before us, but the evidence in the record is, that the business of the corporation was that of a founder and machinist—that it made castings and machinery, and repaired machinery.

2. Generally, action for the recovery of the amount claimed under a mechanic's or a machinist's lien, would have to be commenced within twelve months from the time the claim became due. Irwin's Code, sec. 1963. But this must be taken in connection with the two preceding sections, which are in these terms: If any house, or premises, or other property, on which there is a mechanic's lien, be sold by any process from the courts of this state, the purchaser shall obtain the full title, and the lien shall attach to the proceeds of the sale, upon notice by the mechanic to the officer to hold the money until the next session of the superior court for that purpose. If the claim of lien be disputed by either plaintiff or defendant in the process or decree on which the money was raised, an issue shall be ordered and tried as in other causes; and if it be determined against the claimant, he shall pay such damages, not exceeding twenty per cent., as the jury may assess, with interest from the date of the notice to retain, and costs." These provisions are preserved *in the Code of 1873, section 1990. We have already seen that by section 1966 of Irwin's Code, a machinist may enforce his lien "in the same manner, and with like benefits, privileges and restrictions, as those which apply to mechanics." In the present case, the properly, with some other property of the debtor, was sold under attachment, by special order of the judge, on petition of the attaching creditor. At the time of the sale, the sheriff who made it had in his hands a fi. fa., which had been issued on a foreclosure of this lien in the manner applicable to another class of liens. That fi. fa. was subsequently quashed as illegal. 53 Ga., 433. The sheriff, however, reported it to the court as one of the claims upon the fund, and the fund went into the hands of a receiver. It seems that the receiver became bankrupt, and another receiver was appointed, by whom so much of the fund as could be recovered from the estate of his predecessor, was reduced to possession. This part of the fund being before the court for distribution, the Columbus Iron Works Company appeared as one of the claimants thereto, resting its claim upon the lien we are considering. The sale by the sheriff was made long before the twelve months for com-mencing the suit upon the lien had expired; and, moreover, the debtor, who was a corporation of the state of New York, became bankrupt before said twelve months had expired, and its assignee in bankruptcy was a resident of New York, and never was a resident of Georgia. When the Columbus Iron Works Company appeared in court as a claimant of the fund, the time for suing upon its lien had run out—indeed, that time had been out some two years. The lien was not lost by reason of not commencing an action. The company had the whole twelve months within which to sue. Pending that period, the property was sold by the sheriff under other process. That brought the case within sections 1961 and 1962 of Irwin\'s Code; and the regular course was to give notice to the officer to hold the money until the next session of the superior court. If a formal notice, to that effect, had been given, it would *have been the appointed substitute for an action, and, without doubt, would have been sufficient. But no formal notice was given; and the question is, whether, under the circumstances, the invalid fi. fa. in the sheriff\'s hands at the time the sale was made, and which was reported to the court in the sheriff\'s return, can be treated as a virtual notice. That fi. fa. was based on an affidavit made by an officer of the Columbus Iron Works Company, setting up this lien and calling for its enforcement in the summary method applicable to liens on steamboats, etc On that affidavit, the judge of the superior court granted an order for the fi. fa. to issue, and in obedience to that order, the clerk issued it. It had not been quashed at the time of the sale, and the sheriff treated it as a claim upon the fund. Thus, it served the purpose, so far as the sheriff was concerned, of a more formal notice. Being mentioned in the sheriff\'s return, and filed with it in the clerk\'s office, the court had information of it when the fund was placed in the hands of a receiver. Owing to the bankruptcy of the debtor, and ultimately of the receiver also, together, probably with other causes, the fund remained under the control of the court for a great length of time. Before any disposition was made of it, the company came forward and claimed it, first having endeavored unsuccessfully, to uphold the fi. fa., as a fi. fa., with a view to taking the fund upon it. There seems to be little or no violence in treating the fi. fa., thus followed up, as equivalent to a more regular notice. Perhaps if the sheriff had not respected it, or if the company had not made any further claim after it was quashed as a fi. fa., effect ought to be denied to it as notice. In the former event, the sheriff might not have been liable for paying a way the money in disregard of the lien, and in the latter, the company might not have been liable for damages to the plaintiff or defendant in the process under which the property was sold. But the case we have now is one in which the fi. fa. was placed by the company in the hands of the sheriff, and the sheriff respected it, and the company came forward and claimed *the fund when the time for distribution arrived. Under these facts, if the question of the company\'s liability for the statutory damages should arise, we do not think the company would be heard to say that it gave no notice to the sheriff to hold the money. We found our ruling on what we think to be the reason and good sense of the matter, rather than upon authority. No authority in point has been cited, and we know of none that affords anything more than some slight analogy. In 8 Ga., 65, it was held that an unconstitutional act...