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Foreclosure of materialman's lien. Before Judge Parker. Fulton Civil Court. March 23, 1953.
1. Where the answer of the defendant, containing a paragraph which if established by the evidence would constitute an absolute defense to the action, is demurred to by the plaintiff and the demurrer overruled without exception, such judgment overruling the demurrer constitutes such paragraph of the answer a defense to the action under the law of the case. This is true even though the matter thus set up in the answer may not constitute a legal defense and the judgment of the trial court overruling the demurrer thereto may be error.
2. Separate and inconsistent defenses may be filed, and, where this is done, a special demurrer directed to one specific and separate defense must be decided in its relation to that defense alone, regardless of matter contained in other defenses set out in the answer.
3. Copies of written instruments which do not constitute the bases of causes of action or the relief prayed need not be attached as exhibits to the pleadings.
The defendant in error, West Lumber Company, sought to foreclose a lien in the Civil Court of Fulton County against property owned by the defendants, Alice A. Brooks and E. Rudolph Brooks, for the purchase price of materials bought from it by the contractor, A. T. Wheeless, under a contract to repair the defendants' premises. The plaintiff was not paid for the materials, and filed its claim of lien against the defendants within the statutory period. The defendants paid the contractor in full and received a receipt from him, but did not receive an affidavit that all labor and materials had been paid for. The plaintiff, which had allowed the contractor to purchase from it on open account for a period of years, obtained from Wheeless a note for the total amount of his indebtedness to it, and thereafter obtained a default judgment on the note for the amount therein stated, prior to filing this action. At the close of the evidence the court directed a verdict in favor of the plaintiff. They filed a motion for new trial which was later amended by adding two special grounds, and which was denied. The exceptions are to the denial of this motion and to certain exceptions preserved pendente lite to the pleadings.
1. It is contended by the defendants that the direction of a verdict against them was error because it had become the law of the case that one of their defenses, which was supported by uncontradicted evidence, demanded a verdict in their favor, in that a demurrer to that defense had been overruled and no exceptions preserved to such ruling. In Story v. First National Bank of Thomson, 34 Ga. App. 27 (128 S. E. 12), it is held: "Where a general demurrer to a plea is overruled and no exception to this ruling is taken, the ruling becomes the law of the case and 'stands as a solemn adjudication that the plea was good.' Bennett v. Simmons, 30 Ga. App. 531 (118 S. E. 494), and citations. Where, on the trial of such a case, the defendant introduces evidence which substantially supports her plea, even though the plaintiff introduces conflicting evidence, it is error for the judge to direct a verdict for the plaintiff. Pierpont Mfg. Co. v. Mayor &c. of Savannah, 153 Ga. 455, and cases cited on pages 457 and 458 (112 S. E. 462); Vickery v. Swicord, 151 Ga. 145 (106 S. E. 92)."
Paragraph 15 of the answer contained a special defense as follows: "As a further and alternative defense, defendants allege that the plaintiff has not heretofore obtained judgment against the contractor, A. T. Wheeless, for the price of the materials as to which the plaintiff's lien is asserted and further show that the judgment referred to in paragraph 6 of the plaintiff's petition, as amended, is not a judgment for the price of such materials but is a judgment on the note executed under said contract of April 10, 1951, as alleged above." A demurrer was interposed to this defense on the ground that the allegations "are irrelevant and immaterial in that an express judgment for the price of materials is not necessary, but a judgment which includes the purchase price for the materials which have gone into the property of the defendants is sufficient to authorize a lien upon defendants' property." The overruling of this demurrer established as the law of the case that this defense was material, in that an express judgment for the price of materials must be shown in order to comply with the provisions of Code (Ann. Supp.) 67-2002 (3), rather than a judgment on a note which includes the purchase price of the materials. The proof demanding a finding that the materialman's judgment against the contractor, which was a condition precedent to the foreclosure of his lien, was not such an express judgment for the price of the materials--a finding was demanded, under the law of this case, that the plaintiff had failed to comply with the statutory conditions relative to foreclosure, and was therefore not entitled to a judgment in its favor. The trial court therefore erred in denying the motion for new trial, which specifically urged this defense.
2. A defendant is entitled to file as many separate defenses as he desires, regardless of whether such defenses are inconsistent or contradictory. Code 81-310; Associated Mutuals v. Pope Lumber Co., 200 Ga. 487 (1) (37 S. E. 2d 393). It follows, therefore, that a "further and alternative defense" set up by the defendants in paragraph 13 of their answer neither helped nor hindered the separate defense contained in paragraph 15 above referred to. For this reason the demurrer directed to the defense contained in paragraph 15 pertained to this defense alone, and the judgment overruling this demurrer did not, as contended by the defendant in error, have any relation to paragraph 13 so as to prevent the defense set out in paragraph 15 from becoming the law of the case.
The trial court erred in denying the motion for new trial for the reason set out in the first division of this opinion.
The defendant in error, in its motion for rehearing, requests that this court order up from the trial court an order of the latter overruling a general demurrer to the petition, its contention being that the overruling of this demurrer is controlling and establishes as the law of the case that the allegations of paragraph 6 in the amendment to the petition (set out in division 3 of the opinion, supra) allege a sufficient compliance with Code (Ann. Supp.) 67-2002 (3) to show "the commencement of an action for the recovery of the amount of his claim within 12 months from the time the same shall become due." It is unnecessary for this court to order a diminution of the record, as a copy of the order on the general demurrer is contained in properly certified exceptions pendente lite in the record before us.
From the record, then, it appears that the original petition contained no allegation whatever of an action commenced or judgment obtained against the contractor. The demurrer was to the original petition only, being filed on December 13, 1951, and the trial judge so notes in his order. The petition was materially amended on March 10, 1952, by the addition, among others, of a new paragraph 6 above set out. Thereafter the general demurrer to the petition was not renewed. "A demurrer to an original petition does not, without more, cover the petition after it has been amended in material respects. Livingston v. Barnett, 193 Ga. 640 (19 S. E. 2d 385); Powell v. Cheshire, 70 Ga. 357 (2 b) 48 Am. R. 572; General Accident, Fire & Life Assur. Corp. v. Way, 20 Ga. App. 106 (2) (92 S. E. 650)." Mooney v. Mooney, 200 Ga. 395 (2) (37 S. E. 2d 195); Atlanta Paper Co. v. Sigmon, 82 Ga. App. 730 (1) (62 S. E. 2d 363); Satlof v. State, 52 Ga. App. 208 (1) (182 S. E. 864); Peoples Load Co. v. Allen, 199 Ga. 537, 557 (34 S. E. 2d 811). The general demurrer, which was not renewed, did not reach paragraph 6 of the amendment and in consequence cannot have become the law of the case as to such amendment. As stated in Powell v. Cheshire, supra (the oldest, and therefore the controlling, case on this point, so far as we have been able to discover) : "A bill having been demurred to and an amendment made in regard to material matters, the original demurrer does not relate forward and cover both bill and amendment."
The special demurrer thereafter filed, as pointed out in division 3, supra, was not sufficient to present for adjudication whether the judgment against the contractor was in conformity with the provisions of Code (Ann. Supp.) 67-2002 (3). The order on demurrer shows merely that the trial judge construed the amendment as having been filed to meet the demurrer, and that he then overruled the demurrer to the original petition as it stood before amendment. Accordingly, the existence of this order in no way affects the decision in this case.
This ruling is not in conflict with what is held in Baker v. Sutton, 47 Ga. App. 176 (170 S. E. 95), to the effect that it is not error to overrule a demurrer to an original petition after an amendment has been filed which cures the defects of the petition for the reason that the original defects have become immaterial. The case of Citizens & Southern Nat. Bank v. King, 184 Ga. 238 (190 S. E. 857), is also cited as a precedent for considering a demurrer to an original petition, when heard after the filing of a material amendment, as a demurrer to the amended petition. In that case, there was a general demurrer to the original petition, and a further general demurrer to the amendment, and the court stated that it considered both demurrers "with reference to the amended petition only," and then arrived at the conclusion that the petition as amended did not set forth a cause of action. None of these cases require or would support a ruling here to the effect that a general demurrer to an original petition which did not mention a previous judgment would, on order overruling the same, make it the law of the case that such judgment, when alleged in a subsequent amendment, was a judgment which would ipso facto support a recovery in the case at bar.
Smith, Kilpatrick, Cody, Rogers & McClatchey, A. G. Cleveland, Jr., George B. Haley, Jr., for plaintiffs in error.
DECIDED JUNE 9, 1953 -- REHEARING DENIED JULY 11, 1953, JULY 30, 1953.
Saturday May 23 04:01 EDT

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