Carter-Moss Lumber Co. v. Short

18 S.E.2d 61, 66 Ga. App. 330, 1941 Ga. App. LEXIS 209

• Court: Court of Appeals of Georgia
• Decided: December 5, 1941
• Docket: 29023.
• Status: Published

Opinions

Per Curiam.

The sole question here presented is whether or not a judgment based on the foreclosure of a materialman’s lien is exempt from the operation of the dormant judgment acts as codified in part in Code § 110-1001 as follows: “A judgment shall become dormant and shall not be enforced . . 2. Unless entry is made on the execution by an officer authorized to levy and return the same and such entry and the date thereof are entered by the clerk on the general execution docket within seven years after the issuance of the execution and its record; or 3. Unless a bona fide public effort on the part of the plaintiff in execution to enforce the execution in the courts is made at such times and periods that seven years will not elapse between such attempts or between such an attempt and a proper entry.” In tbe present ease the levy of the execution was made on August 7, 1940. The judgment on which the execution issued was rendered on November 21, 1922, and the execution was issued on the next day and placed upon the general execution docket of the superior court of the county. So far as appears from the execution there was no levy thereof or other effort to enforce the judgment until the levy of the execution on August 7, 1940.

The plaintiff contends that the judgment sub judice was exempt from the provisions of the Code section because it merely declared and established a lien which was already in existence; that such lien was not first established by the judgment but began to exist when the material was furnished to the owner of the property. The Code, § 67-2301, provides that the lien of a materialman on real estate “shall be foreclosed, when not otherwise provided, as follows: 1. By a compliance with his contract by the person claiming the lien and recording his claim, and the commencement of suit therefor, according to the provisions and requirements of section 67-2002. 2. In declaring for such debt or claim the claimant of the lien shall set forth his lien, and the premises on which he claims it; and if the lien shall be allowed, the verdict shall set it forth, and the judgment and execution be awarded accordingly.” The Code, § 67-2001, provides that “all contractors, material-men, and persons furnishing material for the improvement of real estate . . shall each have a special lien on such real estate,” etc. § 67-2002 provides how the lien specified in § 67-2001 may be made good, and states that the liens there mentioned must be “created and declared in accordance with the following provisions, and on failure of any of them the lien shall not be effective, viz.: 1. A substantial compliance by the party claiming the lien with his contract for building, repairing, or improving, or for materials or machinery furnished or set up, as set forth in said section. 2. The recording of his claim of lien within three months after the completion of the work [in the form specified]. . . 3. The commencement of an action for the recovery of the amount of his claim within twelve months from the time the same shall become due.” The lien thus provided for in favor of a materialman is not absolute, but must be completed, made good, or perfected in accordance with the provisions of the law above quoted. It is only inchoate or incipient until a judgment finally perfects it. “In 27 Cyc. 110 it is said: ‘The doing of work or furnishing of materials gives merely an inchoate lien or the right to acquire a lien, and the statute prescribes the steps to be taken to perfect such lien/ Lien laws are of course to be strictly construed, and one who claims a lien must bring himself within the law. Palin v. Cook, 125 Ga. 442 (54 S. E. 90). The mechanic’s lien, as to realty, is in derogation of common law, and is to be construed strictly and extended no further than its words plainly import. Fox v. Rucker, 30 Ga. 525. The failure of a mechanic or contractor to perfect his lien, as provided by statute, vitiates the lien, not only as against third persons, but, under our decisions, as against the owner himself. Cherry v. North & South Railroad, 65 Ga. 633, 635. To ‘make good’ the contractor’s lien, the statutes must be strictly complied with.” Oglethorpe Savings & Trust Co. v. Morgan, 149 Ga. 787, 792 (102 S. E. 528). See Kwilecki v. Young, 180 Ga. 602 (180 S. E. 137). Once established by judgment, however, the lien’s efficacy relates back to the date of the completion of the contract. Middle Georgia Lumber Co. v. Hunt, 53 Ga. App. 578, 580 (186 S. E. 714); Oglethorpe Savings & Trust Co. v. Morgan, supra. It necessarily follows from the above that the judgment rendered on November 21, 1922, did not, as contended by the plaintiffs in error, merely declare or recognize a lien which was absolute theretofore, but that such judgment rendered perfect or made good for the first time the lien claimed by the materialman, and, accordingly, was within the statute providing that, under the circumstances of this case, such judgment would become dormant after seven years. The trial court did not err in sustaining the defendant’s affidavit of illegality and in dismissing the levy.

Where a lien is created by contract, for example, as in a mortgage, and where no judgment is necessary to make good or establish such a lien, the statute as to dormant judgments does not apply. Cases dealing with that kind of a lien, such as Butt v. Maddox, 7 Ga. 495, cited, and relied on by the plaintiff in error, are distinguishable. See Collier v. Bank of Tupelo, 190 Ga. 598 (10 S. E. 2d, 62).

Judgment affirmed.

Sutton and Felton, JJ., concur.