Bullard v. Dudley & Sons

28 S.E. 845, 101 Ga. 299, 1897 Ga. LEXIS 218

• Court: Supreme Court of Georgia
• Decided: May 21, 1897
• Status: Published

Opinion

Lumpkin, P. J.

The motion for a new trial under review in the present case raises numerous questions, but one only of them need be noticed.

The plaintiffs below undertook to foreclose a materialman’s lien upon property belonging to Mrs. Bullard. At the trial it appeared that they had failed to comply with that portion of section 2801 of the Civil Code requiring them to serve upon her a written notice stating the amount of the claim due them. It did appear that such a notice had been served upon her husband ; and there was some evidence to the effect that a similar notice, directed to her, had been entrusted to him under a promise that he would deliver the same to her; but whether such a promise was or was not made, she never in fact received the notice; the record disclosing with absolute certainty that no attempt, other than as above stated, was made to serve her personally, and that no notice ever in fact reached her. Even if her husband was her agent, service upon him was insufficient. Pou v. Covington & Macon R. R. Co., 84 Ga. 311. It follows that the plaintiffs were not entitled to the verdict rendered in their favor.

Judgment reversed.

All the Justices concurring.