Winder Lumber Co. v. Washington Brick Co.

• Decision Date: 16 July 1919
• Docket Number: 1055.
• Citation: 99 S.E. 863,149 Ga. 215
• Parties: WINDER LUMBER CO. v. WASHINGTON BRICK CO. et al.
• Court: Georgia Supreme Court

99 S.E. 863

149 Ga. 215

WINDER LUMBER CO. v. WASHINGTON BRICK CO. et al.

No. 1055.

Supreme Court of Georgia

July 16, 1919

Syllabus by the Court.

The Washington Brick Company brought suit in the superior court of Jackson county against the Winder Lumber Company, of Jackson county, and the Mary Leila Cotton Mills, of Greene county, for the purpose of obtaining a judgment against the Winder Lumber Company for brick sold to it and used by it, as contractor, in building the cotton mills, and for the establishment of a special materialman's lien by such judgment on the property of the Mary Leila Cotton Mills. The last-named corporation filed its answer, averring that it was unable to say whether the Winder Lumber Company owed the plaintiff, but that the latter had no debt against the responding defendant, and that it did not owe the Winder Lumber Company any debt, but that company was indebted to it the Mary Leila Cotton Mills. The court, on motion, struck the Mary Leila Cotton Mills, as a party defendant in so far as any controversy between it and the Winder Lumber Company was concerned, and left, as the sole issue to be tried against the Mary Leila Cotton Mills, the one question whether the plaintiff might obtain a judgment against the Mary Leila Cotton Mills, establishing and foreclosing a lien for the amount for which it might obtain judgment against the Winder Lumber Company. To this judgment the Winder Lumber Company excepted. This court held that the writ of error was prematurely brought, "for the reason that the case with respect to foreclosure of lien against the Mary Leila Cotton Mills is still pending in the court below." Winder Lumber Co. v. Mary Leila Cotton Mills, 143 Ga. 277, 84 S.E. 587. The Winder Lumber Company also excepted pendente lite to the ruling of the court in striking the Mary Leila Cotton Mills as a party defendant in so far as any controversy between it and the Winder Lumber Company was concerned. At a subsequent term of the Barrow superior court (to which said case was transferred upon the creation of Barrow county), the case was referred to an auditor, who after hearing the same, made and filed his report containing his findings of law and findings of fact. The findings being adverse to the Winder Lumber Company, it filed exceptions both of law and of fact. By order entered in term, the hearing on the exceptions of law and fact was had in vacation. The court overruled the exceptions of law, and disallowed the exceptions of fact. Subsequently the court entered a final decree in the case. The Winder Lumber Company presented a bill of exceptions, in which error was assigned specifically on its pendente lite exceptions to the order of the court in striking the Mary Leila Cotton Mills as a party defendant, in so far as any...