Neal-Blun Co. v. Rogers

• Decision Date: 12 June 1914
• Docket Number: 393.
• Parties: NEAL-BLUN CO. v. ROGERS ET AL.
• Court: Georgia Supreme Court

82 S.E. 280

141 Ga. 808

NEAL-BLUN CO. v. ROGERS ET AL.

No. 393.

Supreme Court of Georgia

June 12, 1914

Syllabus by the Court.

It is the official duty of the clerk of the superior court to record with reasonable promptitude a materialman's claim of lien, and a failure in this respect is a breach of that duty.

In order to render the clerk and the sureties on his official bond liable for the former's misfeasance, both a breach of duty and consequent damage must be shown.

(a) Where the statute requires a materialman's lien to be recorded within a certain time from the date the materials are furnished, to entitle him to a lien on the property improved, and the materialman within that period of time files his claim of lien with the clerk of the superior court for record, who negligently fails to record it within the time provided by statute, and on this account the claim of lien is lost, the materialman, as a condition precedent to establishing that he has been damaged, will not be required to show that he instituted a foreclosure proceeding which failed on account of the clerk's default.

(b) There being evidence to authorize an inference that the plaintiff complied with the statutory requisites entitling him to a lien for materials furnished to the contractor for the improvement of the premises of another, and that the lien was lost because of the misfeasance of the clerk, and that the contractor is insolvent, a prima facie case was made out and it was error to grant a nonsuit.

Error from Superior Court, Tattnall County; W. W. Sheppard, Judge.

Action by the Neal-Blun Company against R. J. Rogers and others. Judgment for defendants, and plaintiff brings error. Reversed.

Way & Burkhalter, of Reidsville, for plaintiff in error.

James K. Hines, of Atlanta, and E. C. Collins, of Reidsville, for defendants in error.

EVANS P.J.

This is an action against a clerk of the superior court and the sureties on his official bond to recover damages alleged to have occurred because of the failure of the clerk to record the plaintiff's materialman's lien until after the time provided by law for the record of such lien had expired. The court granted a nonsuit, and exception is taken to that judgment. It appeared, upon the trial, that the building committee of the Farmers' Supply Company, a corporation entered into a contract with George L. Adams for the construction of certain stores at the agreed price of $12,000. The plaintiff sold to the contractor certain materials amounting to the principal sum of $484, which were used in the construction of the building, the last item being furnished on November 24, 1906. On February 21, 1907, the plaintiff, through its president, filed for record with the clerk of the superior court of Tattnall county its claim of lien against the Farmers' Supply Company for the materials furnished the contractor. At the time of filing the claim of lien the president of the plaintiff corporation told the clerk that the time allowed for recording would expire in a few days, and impressed upon him the necessity of an immediate record. He paid the clerk his fee. The claim of lien was not recorded until March 18, 1907, which was a date subsequent to the time allowed by law for the record of the lien. In November, 1907, the plaintiff instituted a proceeding in the superior court of Tattnall county against the Farmers' Supply Company, a corporation of Tattnall county, to foreclose its materialman's lien upon the property improved. In April, 1909, this suit was amended by making Adams, the contractor, who was a resident of Montgomery county, a party defendant. After the amendment Adams acknowledged service and waived process. The suit eventuated in a verdict in favor of the materialman against the contractor for the sum of $484.60, principal, and $99.45 interest to date, and in favor of the Farmers' Supply Company. The judgment which the plaintiff recovered against Adams has never been satisfied; and Adams, at the time of the institution of the proceeding against the owner of the premises, as well as at all subsequent times, was insolvent.

1. There can be no doubt from the evidence...