Centennial Equities Corp. v. Hollis

207 S.E.2d 573, 132 Ga. App. 44, 1974 Ga. App. LEXIS 1595

• Court: Court of Appeals of Georgia
• Decided: May 10, 1974
• Docket: 49115
• Status: Published

Opinions

Evans, Judge.

On July 28, 1972, William A. Hollis filed and recorded a lien for labor and materials used for improvement of real estate of Multicon and Centennial Equities Corporation. It was alleged that the lien was filed within 3 months from date when labor and material were furnished. It was alleged that the labor and material were furnished at the instance of Multicon Construction Corporation. Here let it be noted that Multicon (one of those against whom the lien was filed) is a limited partnership of Ohio; while Multicon Construction Corporation (at whose instance the labor and materials were furnished) is an Ohio corporation.

On June 4, 1973, Hollis sued Centennial Equities Corporation for $25,642.14 for labor and materials furnished to it, the same amount as was set out in the lien, and a copy of the lien attached to the complaint. A special lien was also sought against the property. Service was accomplished upon the foreign corporation’s agent for service. No answer was filed, and on July 23, 1973, a default judgment in the amount sought and special lien on the property were awarded. On October 10,1973, three terms later, a motion to set aside the judgment was filed by defendant, and rule nisi issued. The motion to set aside did not pray the opening of the default, but alleged that the judgment was void and should be set aside. A hearing on the rule nisi was held, and the court denied the motion to set aside the special lien on the property, stating that the plaintiff had stipulated the in personam (money) judgment against defendant was void. Defendant appeals. Held:

1. In order to set aside this judgment the pleadings must affirmatively show that no claim in fact existed. Code Ann. § 81A-160 (Ga. L. 1966, pp. 609, 662; 1967, pp. 226, 239, 240). City of Cornelia v. Gunter, 227 Ga. 464 (181 SE2d 489).

2. Defendant argues that an entry of judgment without a jury is void. But under Section 39 of the law creating that court, a jury trial must be demanded as specifically provided in Ga. L. 1935, pp. 500, 503. Indeed, this court has held that where no jury is demanded it is not error to try the issue without a jury. Cherry v. McCutchen, 68 Ga. App. 682, 690 (23 SE2d 587); Owen v. Stevenson, 18 Ga. App. 391 (89 SE 435).

In the absence of any showing of improper service (lack of notice), the failure of defendant to demand a jury trial pursuant to Section 39, supra, is a waiver of right to trial by jury.

3. The lien attached to the complaint clearly shows it substantially met the requirements of Code Ann. §§ 67-2001, 67-2002. The lien states it was filed within three months after labor and materials were furnished at the instance of a nonresident. The law requires suit to be filed, "within 12 months from the time the same shall become due.” McCluskey v. Still, 32 Ga. App. 641 (124 SE 548); Cowart v. Reeves, 80 Ga. App. 161 (1, 4) (55 SE2d 911); compare Chambers Lumber Co. v. Martin, 112 Ga. App. 826 (146 SE2d 529); Eubank v. Barber-Colman Co., 115 Ga. App. 217, 219 (2b) (154 SE2d 638). This court presumes the judgment is supported by every fact essential to make it valid and binding. Kiser v. Kiser, 101 Ga. App. 511 (1) (114 SE2d 397).

Plaintiff’s complaint attached a copy of the notice of lien filed in the superior court, and it recites that the materials and labor were used in the improvement of defendant’s real estate as described in the lien; and which "were furnished by the undersigned at the instance of Multicon Construction Corp., an Ohio corporation.” The Civil Practice Act as to notice pleadings now requires that there be a general averment that conditions precedent have been performed or have occurred. See Code Ann. § 81A-109 (c) (§ 9, CPA; Ga. L. 1966, pp. 609, 620).

4. Defendant argues that plaintiff was required to allege and prove that personal jurisdiction could not be obtained on the contractor, before plaintiff was entitled to seek a judgment in rem against the property. However, the complaint filed shows such contractor to be a resident of Ohio, generally. Evidence as to the fact of residence could be proven within the framework of the complaint, and the complaint is therefore sufficient. See Mitchell v. Dickey, 226 Ga. 218 (173 SE2d 695); Harper v. DeFreitas, 117 Ga. App. 236 (160 SE2d 260); Welding Products of Ga. v. S. D. Mullins Co., 127 Ga. App. 474, 477 (193 SE2d 881); Southern Discount Co. v. Cooper, 130 Ga. App. 223 (203 SE2d 237). For a thorough discussion of pleading and proving conditions precedent in regard to regulatory licenses see the recent case of Management Search, Inc. v. Kinard, 231 Ga. 26 (199 SE2d 899). There it is held that in order to authorize a recovery by a plaintiff holding a regulatory license, he may prove same at whatever stage of the proceedings it should appear.

Submitted March 6, 1974 Decided May 10, 1974 Rehearing denied June 4, 1974 Hansell, Post, Brandon & Dorsey, Dent Aeree, for appellant. Howard, Howard & Hall, William V. Hall, Jr., for appellee.

5. No reason has been shown to set aside the judgment as void.

Judgment affirmed.

Bell, C. J, Pannell, P. J, Deen, Quillian, Stolz and Webb, JJ, concur. Eberhardt, P. J., and Clark, J., dissent.