1. Assuming that the case was legally in default, the allegations according to Code (Ann.) 110-401 needed no proof. But the plaintiff could not be allowed to recover of a party against whom the petition did not set forth a cause of action nor be granted relief that the allegations of the petition, accepted as true, did not show him to be entitled to.
2. The allegation of a petition that a named defendant acted as agent of another in making a contract with the plaintiff is not an averment that the defendant assumed any obligation to personally perform the contract.
3. The statute provides that within three months after the work is done or the materials are furnished the party who would assert a materialman's lien against the realty of another must file his claim of lien for record in the office of the clerk of the superior court.
5. Where, in a suit brought against a husband and wife seeking a general judgment against both and praying a judgment of foreclosure against the wife's realty, the petition fails to show a right in the plaintiff to recover of the husband or to enforce the lien, and the plaintiff's proof submitted during the trial of the case exonerates the wife of liability, the plaintiff was entitled to no relief.
John C. Nix, plaintiff in error, brought an action against the defendants in error, in the Civil Court of Fulton County, for a lien for labor and materials used in the improvement of real estate, wherein the plaintiff prayed for general judgment against the defendants and for a special judgment against certain real estate owned by defendant, Sybil Camp Luke.
The petition alleged: that Mrs. Sybil Camp Luke, wife of A. M. Luke, and one of the defendants, owns certain real property located at 1276 Avonwood Circle, S. E., Atlanta, Fulton County, Georgia; that A. M. Luke, acting as agent for his wife, obligated to pay plaintiff $442.20 in consideration of plaintiff's performing certain nursery improvements to the property consisting of labor, landscaping, and material (plants, etc.) ; that the defendants and the subject matter of this suit are subject to the jurisdiction of this court; that the plaintiff performed his said contract, and there is a balance due him of $436.66, principal, $417.20 plus interest $19.46, which is the amount sued for; that demand has been made by petitioner and refused by defendant; that the plaintiff shows that within three months from the completion of the contract he recorded his claim of lien upon the property located at 1276 Avonwood Circle, S. E., Atlanta, Fulton County, Georgia, which property is more fully described in Exhibit "A" attached to and made a part of the petition, as required by law, in the office of the clerk of the superior court of said county. The lien is set out in Exhibit "B" attached to and made a part of the petition; now, within the time required by law, the plaintiff brings his action for the recovery of the $436.66 against the improved real estate as set out in Exhibits "A" and "B", the property of Mrs. Sybil Camp Luke, one of the defendants; wherefore, plaintiff prays for a general judgment against the defendants for the amount due as aforesaid, and for a special judgment giving a lien on said real estate, and prays that process issue requiring the said defendants to be and appear at the next term of said court, to answer petitioner's complaint and that all costs of said suit be placed upon the defendants herein.
The claim of lien alleged to have been filed in the office of the clerk of the superior court and attached to the petition as exhibit "B" read: "Georgia, Fulton County. Nix Nurseries Inc., claims a lien to the amount of four hundred and forty-two dollars and twenty cents ($442.20) on the residence of A. M. Luke located at 1276 Avonwood Circle, S. E., Atlanta, Georgia, for labor and materials used in the improvement of the above stated property. Now within three months since the same was done.
"The undersigned records this lien therefore in the office of the clerk of the superior court of the county where said property is situated, as aforesaid, performed to the provision of 67-2002 of the Code of Georgia. James M. Newsom, Jr., 1296 Glenwood Ave., S. E., Atlanta, Georgia, attorney for claimant. Filed for record 29th day of Aug., 1956 at 11:19 o'clock a. m., recorded Aug. 29, 1956. J. W. Simmons, Clerk."
Luke executed a promissory note in the amount of $414.41, and on or about July 31, 1956 he completed the work on the property, same having been fully executed in accordance with the contract; on August 29, 1956 he recorded his lien for the improvement of the property in the amount of $442.20 in the Clerk's Office of the Superior Court of Fulton County; that the said lien was unpaid and a balance due on the same in the amount of $417.20 principal, plus $19.46 interest; that at the time he entered into the contract with Mr. Luke, Mr. Luke stated he was the owner of the property and that he, Mr. Nix, did not know that the property was in the name of Mrs. Sybil Camp Luke until the filing of this suit; that Mrs. Luke knew all about the contract, had instructed him where to plant the shrubbery, and she personally made one of the payments on the contract; that Nix Nurseries is a corporation and that he is vice-president and secretary-treasurer of the corporation.
There was no other evidence adduced on the trial of the case. The trial judge, sitting without intervention of a jury, entered a judgment in favor of the defendants. The plaintiff excepted and the case is here for review.
1. We will refer to the plaintiff in error, John C. Nix, as the plaintiff and to the defendants in error, Mrs. Sybil Camp Luke and A. M. Luke as the defendants, except when it is necessary to distinguish them from each other, then the defendants when referred to will be designated by name.
It is the plaintiff's contention that the defendants' plea to the jurisdiction was properly stricken, that the effect of that ruling placed the case in default and entitled him to all of the relief prayed for in the petition.
The relief prayed by the petition was (a) a general judgment against both defendants; (b) a judgment of foreclosure of the materialman's lien against the property described in the petition.
Assuming that the case was legally in default, the allegations, according to Code (Ann.) 110-401, needed no proof. But the plaintiff could not be allowed to recover of a party against whom the petition did not set forth a cause of action nor be granted relief that the allegations of the petition, accepted as true, did not show him entitled to.
2. The petition alleged that the defendant, A. M. Luke, as agent for his wife contracted with the plaintiff for labor and material which the latter furnished in improving the wife's real estate. There was no allegation that he agreed to become personally responsible or become liable in any manner for the price or value of the labor or material. Hence no cause of action was set forth against the defendant, A. M. Luke.
3. The averments of the petition further showed that the plaintiff's failure to comply with the requirement of Code (Ann.) 67-2002 (2) precluded the enforcement of the materialman's lien. The statute provides that within three months after the work is done or materials are furnished the party who would assert a materials lien against the realty of another must file his claim of lien for record in the office of the clerk of the superior court.
It has been repeatedly held that filing the lien as provided by the Code section is essential to the validity of a foreclosure of a materialman's lien against realty. Chambers Lumber Co. v. Gilmer, 60 Ga. App. 832 (5 S. E. 2d 84); Jones v. Kern, 101 Ga. 309 (28 S. E. 850).
The petition does show that there was a claim of lien filed in the name and on behalf of Nix Nurseries, Inc., against the property of A. M. Luke. But the foreclosure proceedings were brought by John C. Nix, d/b/a Nix Nurseries, Inc., and the judgment of foreclosure is prayed only against the property of Mrs. Sybil Camp Luke. While the petition alleges that the suit is brought by John C. Nix, d/b/a Nix Nurseries, Inc., a corporation is a separate and distinct legal entity from a natural person, though the two have similar names. The name Nix Nurseries, Inc., must be held, in the absence of an averment to the contrary, to be the name of a corporation. Bass & Co. v. Bearden, 6 Ga. App. 696
(65 S. E. 692); Pacific National Fire Ins. Co. v. Cummins Diesel of Georgia, 213 Ga. 4
(96 S. E. 2d 881). An individual cannot carry on business in the name of a corporation, unless the names happen to be identical. It would have been possible for the petition to have alleged a situation in which the plaintiff, John C. Nix could have succeeded to the rights of Nix Nurseries, Inc., so that he could have legally proceeded to foreclose the lien, the claim of which was filed for record in the name of the corporation; for instance, it could have been shown that the corporation had been dissolved and that the plaintiff by purchase of its assets had succeeded to its right to enforce the lien, or it could have been alleged that the lien had been transferred by the corporation to the plaintiff, but no such allegation was contained in the petition. It is obvious that the claim of lien recorded against the realty of A. M. Luke was not the recordation of such claim against the property of Mrs. Sybil Camp Luke. Hence, the recordation of the claim of lien shown by the petition amounted, so far as the foreclosure was concerned, to none at all.
4. Assuming the case was in default, since the petition alleged a cause of action against Mrs. Sybil Camp Luke individually, the plaintiff would have been entitled, without introducing any evidence to a judgment in personam against her. But the plaintiff did not rest his cause on his pleadings, but submitted evidence. The plaintiff's evidence showed that Mrs. Luke's husband, A. M. Luke, contracted with the plaintiff to perform certain work and furnish materials for the improvement of her realty. The evidence unequivocally showed that her husband did not contract in Mrs. Luke's behalf, and was silent as to any fact from which it could be inferred that she authorized him to represent her in the transaction. There was evidence that she accepted the labor and materials purchased of the plaintiff by her husband. This was not sufficient proof to establish her liability. In Moore v. Sims, 24 Ga. App. 296 (1) (100 S. E. 647) it was held: "The mere fact that a wife may be the owner of one or more cows which feed upon provender furnished solely upon the credit of her husband will not render her liable for the value of such foodstuff, nor authorize a judgment against her for the same, on the theory that she was the concealed principal of her husband, when there is no evidence that he was in any way acting as her agent when the purchase was made. See Hightower v. Walker, 97 Ga. 748 (25 S. E. 386); Montgomery v. Walton, 111 Ga. 840 (36 S. E. 202); Blount v. Dugger, 115 Ga. 109 (41 S. E. 270); Cornelia Planing Mill Co. v. Wilcox, 129 Ga. 522 (59 S. E. 223)."
There was no proof that Mrs. Luke ever obligated herself to pay the plaintiff for the labor and materials. Thus the plaintiff having successfully alleged a case against Mrs. Luke, by his evidence proved that he was not entitled to recover against her.
5. It follows from what is held in the preceding divisions of this opinion that the plaintiff was not entitled to a judgment against A. M. Luke, a judgment of foreclosure against which the plaintiff undertook to assert the materialman's lien; the evidence adduced by the plaintiff proved he was not entitled to a general judgment against the defendant, Mrs. Sybil Camp Luke, hence the trial judge did not err in rendering a judgment denying the plaintiff any relief.
The case is decided solely on technical grounds; it is not intended that the plaintiff's cause was not just. Indeed, since his claim was not denied it may be assumed that the debt he sought to collect by the foreclosure proceedings was a valid claim. However, in the factual situation presented by the pleadings and evidence he was not legally entitled to enforce this debt in the manner and form he undertook.
Judgment affirmed on the main bill of exceptions and the cross bill of exceptions is dismissed. Felton, C. J., and Nichols, J., concur.