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MULLINAUX v. GILREATH et al.
MULLINAUX v. BRYANT et al.
MULLINAUX v. ROGERS et al.
MULLINAUX v. GILREATH et al.
35401.
35402.
35403.
35418.
Foreclosure of materialman's lien. Before Judge Paschall. Bartow Superior Court. September 3, 1954.
NICHOLS, J.
1. The allegations of the petition wherein it was sought to foreclose a materialman's liento the effect, that the owners of described realty employed a contractor to build a house thereon, that plaintiff furnished the contractor material for the building of the house, that within three months after the material was furnished plaintiff claimed a lien on the realty which lien was duly recorded, that plaintiff's demand for payment was refused, and that plaintiff commenced the action within the time required by lawwere sufficient as against general demurrer to set forth a cause of action, where the petition together with entries thereon, and the exhibits which were made a part of the petition, showed that the lien was recorded within three months after the material was furnished, and that the action for the recovery of the amount of plaintiff's claim was commenced within twelve months from the time the claim became due. Code 67-2002 as amended; Pickard v. Gregory, 88 Ga. App. 475 (76 S. E. 2d 860).
2. Each of the interventions, together with the exhibits which were attached and made a part thereof, showed that the liens were recorded in the office of the clerk of the superior court within three months after the labor was done and the material was furnished, and that the intervenors were made parties within twelve months from the time their claims became due. Accordingly, the trial court did not err in overruling the objections to the interventions, on the ground that the allegations contained therein were too vague and indefinite to entitle the intervenors to recover on their claims.
3. The purported brief of evidence consists of approximately 67 pages; and with the exception of 7 pages of documentary evidence practically every page includes either motions to rule out evidence, objections to the introduction of evidence, rulings of the court in passing upon various objections and motions, statements of the court, colloquies between counsel and between counsel and the court, and various other irrelevant matter. There has been no bona fide attempt whatever to comply with the requirements of Code 70-305 as amended by the act of 1953 (Ga. L. 1953, Nov.-Dec. Sess., pp. 440, 446 (b)), and this court will therefore, not pass upon any assignment of error in the determination of which reference must be had to the purported brief of evidence. Robinson v. State, 209 Ga. 650 (1) (75 S. E. 2d 9); Heard v. Helms, 210 Ga. 669 (82 S. E. 2d 129); Brown v. Clarke, 211 Ga. 61 (84 S. E. 2d 14); Williamson v. Yakupian, 211 Ga. 61 (84 S. E. 2d 15); Boston Ins. Co. v. Harmon, 66 Ga. App. 383 (1) (18 S. E. 2d 84); Satterwhite v. Mansfield, 91 Ga. App. 450 (85 S. E. 2d 802). Accordingly, since the general grounds of the motion for new trial and all of the three special grounds require reference to the brief of evidence, no question is presented for determination by this court, by the assignments of error on the denial of the motion for new trial.
On May 27, 1952, J. Hugh Gilreath, doing business as J. Hugh Gilreath Hardware Company, brought suit against Floyd Mullinaux, Irene Mullinaux, and W. E. Matthews, to foreclose a materialman's lien, the amended petition alleging: In 1952, the defendants, Floyd and Irene Mullinaux, who owned described realty in the City of Cartersville, employed the defendant, W. E. Matthews, a contractor, to build a house thereon. Plaintiff sold and furnished defendant W. E. Matthews material for the building of the house and making of the improvements in the sum of $3,215.18, the first of which was furnished on June 5, 1952, and the last on July 26, 1952. Within three months after the last of the material was furnished, plaintiff claimed a lien on the realty and had the same recorded on August 13, 1952. He made demand upon defendants for payment and they failed to pay for the material. Plaintiff prayed: that process issue; that he recover a general judgment in the sum of $3,215.18 as principal, together with interest; that he recover a special judgment as a first lien on the realty. An itemized statement showing the materials alleged to have been furnished and the dates thereof, and a copy of the lien, were attached as exhibits to the petition.
Defendants Floyd and Irene Mullinaux demurred on the ground that the petition did not set forth a cause of action against them. To a judgment overruling the above demurrer these defendants excepted.
Defendants Floyd and Irene Mullinaux also filed an answer, in which they averred among other things that plaintiff was advised shortly after construction was commenced that the contract had been breached, and that he would have to look to defendant Matthews alone if any more materials were furnished.
Defendant W. E. Matthews filed an answer, in which he denied material averments in the answer of the other defendants, averred that he attempted to complete the house which was being constructed for defendants Floyd and Irene Mullinaux, but they refused to allow the work to proceed; that he has substantially complied with the contract, and unless a judgment is recovered against them, they, as owners of the property improved by this defendant, will be unjustly enriched in the sum of $4,100; and asking that named persons be required to intervene and set up their claims.
The trial court issued a rule nisi requiring the persons named to intervene, and on July 14, 1953, Allen Rogers, trading as Rogers Electric Company, and James Bryant, filed their interventions in response to the order.
The intervention of Allen Rogers, omitting formal parts, was as follows: "1. Intervenor shows that the defendants are indebted to him in the principal sum of $207.50 and interest of $10.17 thereon to the date of the filing of this intervention as per bill of particulars next attached and marked exhibit A and made a part of this paragraph of this petition. 2. Intervenor further says that he filed his lien upon certain real estate and improvements thereon belonging to Floyd and Irene Mullinaux, the two defendants named herein, with the Clerk of the Superior Court of Bartow County, Georgia, said lien being of record on page 432 of Deed Book 98 of the records of said clerk, copy of said lien being attached and marked exhibit B and made a part of this paragraph of this petition. 3. Intervenor further says that the aforesaid debt is just and true and that no part of it has been paid. 4. Intervenor says that he has no objection to the manner in which this case is proceeding so long as his claim is allowed and protected by the court." The bill of particulars showed in part: "W. E. Matthews, Mullinaux House, in account with Rogers Electric Company . . . 42 outlets installed at $3.50, $147. Wiring range $35. Wiring water heater $25." The lien, which was sworn to October 2, 1952, contains the statement, "and now within three months" since the electrical labor was done and the material was furnished, the intervenor "records this lien therefor in the office of the clerk of the superior court of the county where said property is situated as aforesaid," etc.
The intervention of James Bryant alleged that the defendants were indebted to him in the principal sum of $600 together with interest at the rate of 7 percent per annum from September 29, 1952, the same being the charges for painting and materials furnished by him in the building of a house on certain real estate belonging to Floyd Mullinaux and Irene Mullinaux. In other details this intervention was substantially the same as the one filed by Allen Rogers, with the following exceptions: No itemized statement was attached, and the lien containing the statement "now within three months" since the claim was clue, "the undersigned records this lien," was sworn to September 29, 1952.
Defendants Floyd Mullinaux and Irene Mullinaux orally moved the court to strike each of the above-stated interventions, on the ground that the various statements of intervenors' petitions were too vague and indefinite to authorize the foreclosure of the intervenors' liens. To an order overruling the above objections defendants Floyd and Irene Mullinaux excepted.
At the conclusion of the evidence, the trial court directed a verdict against all of the defendants, and final judgments were entered in favor of the plaintiff and each of the two intervenors.
The motion for new trial of defendants Floyd and Irene Mullinaux, which was amended by adding three special grounds complaining that the trial court erred, (first) in directing a verdict, (second) in rejecting certain testimony offered by a witness for defendants, and (third) in allowing, over objection of defendants, certain testimony of a witness for plaintiff, was overruled.
In case No. 35401, defendant Irene Mullinaux assigns error, (first) on the judgment overruling her general demurrer to the petition, wherein plaintiff sought to foreclose a materialman's lien, (second) to the direction of a verdict in favor of plaintiff and each of the two intervenors, and (third) on the judgment denying the amended motion for new trial.
In case No. 35402, defendant Irene Mullinaux assigns error on the judgment overruling her objections to the intervention filed by James Bryant.
In case No. 35403, defendant Irene Mullinaux assigns error on the judgment overruling her objections to the intervention filed by Allen Rogers, trading as Rogers Electric Company.
In case No. 35418, defendant Floyd Mullinaux assigns error, (first) on the judgment overruling his general demurrer to the petition wherein plaintiff sought to foreclose a materialman's lien, (second) to the direction of a verdict in favor of the plaintiff and each of the two intervenors, and (third) on the judgment denying the amended motion for new trial.
Paul F. & Warren Akin, for J. H. Gilreath.
Davis & Cullens, for W. E. Matthews.
Jere F. White, for Allen Rogers and James Bryant.
Pitman & Greene, W. B. Greene, for plaintiffs in error.
DECIDED FEBRUARY 24, 1955.
Saturday May 23 03:07 EDT


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