Chambers Lumber Co. v. Martin

Court of Appeals of Georgia

Chambers Lumber Co. v. Martin

146 S.E.2d 529, 112 Ga. App. 826, 1965 Ga. App. LEXIS 844

Court of Appeals of Georgia·Decided December 3, 1965·No. 41575·Published·Cited by 11 cases

Opinion

Franicum, Judge.

Where material has been furnished to a contractor or subcontractor for the improvement of real estate, in a suit against the owner to foreclose a materialman’s lien on such real estate the plaintiff must allege, in addition to other essentials, that he has brought a suit against the contractor or subcontractor, as the case may be, to whom the material was furnished, and, unless the case is one within the exceptions enumerated under Code § 67-2002, as amended, that a judgment against such contractor has been obtained. Victory Lumber Co. v. Ellison, 95 Ga. App. 105 (97 SE2d 334). This case is controlled by the case cited, and that case requires that the judgment of the trial court granting a summary judgment to the defendant be affirmed upon the principles therein announced. This is so notwithstanding the provisions of the Act approved February 11, 1960 (Ga. L. 1960, p. 103). While the caption of that Act might be said to indicate a legislative intent to effect a change in the law, as announced in the Victory Lumber Co. case, supra, and to relieve the lienholder from the necessity of filing suit against a bankrupt contractor to whom he has furnished material, the language contained in the body of the Act is plain and unambiguous and merely relieves the lienholder of the duty of obtaining a judgment against such contractor. It is fundamental that the preamble or caption of a legislative Act is no part thereof and may be resorted to for the purpose of ascertaining legislative intent only where the body of the Act itself is ambiguous or obscure. Eastman v. McAlpin, 1 Ga. 157, 171; Bentley v. State Bd. of Examiners, 152 Ga. 836, 838 (2) (111 SE 379). This is not the situation in this case.

Judgment affirmed.

Bell, P. J., and Hall, J., concur. Robinson, Thompson, Buice & Harben, Sam S. Harben, Jr., Telfoi'd, Wayne & Greer, Joe K. Telford, for appellant. Joseph H. Blackshear, Kenyon & Gunter, William B. Gunter, for appellees.

Free access — add to your briefcase to read the full text and ask questions with AI

Franicum, Judge.

Where material has been furnished to a contractor or subcontractor for the improvement of real estate, in a suit against the owner to foreclose a materialman’s lien on such real estate the plaintiff must allege, in addition to other essentials, that he has brought a suit against the contractor or subcontractor, as the case may be, to whom the material was furnished, and, unless the case is one within the exceptions enumerated under Code § 67-2002, as amended, that a judgment against such contractor has been obtained. Victory Lumber Co. v. Ellison, 95 Ga. App. 105 (97 SE2d 334). This case is controlled by the case cited, and that case requires that the judgment of the trial court granting a summary judgment to the defendant be affirmed upon the principles therein announced. This is so notwithstanding the provisions of the Act approved February 11, 1960 (Ga. L. 1960, p. 103). While the caption of that Act might be said to indicate a legislative intent to effect a change in the law, as announced in the Victory Lumber Co. case, supra, and to relieve the lienholder from the necessity of filing suit against a bankrupt contractor to whom he has furnished material, the language contained in the body of the Act is plain and unambiguous and merely relieves the lienholder of the duty of obtaining a judgment against such contractor. It is fundamental that the preamble or caption of a legislative Act is no part thereof and may be resorted to for the purpose of ascertaining legislative intent only where the body of the Act itself is ambiguous or obscure. Eastman v. McAlpin, 1 Ga. 157, 171; Bentley v. State Bd. of Examiners, 152 Ga. 836, 838 (2) (111 SE 379). This is not the situation in this case.

Judgment affirmed.

Bell, P. J., and Hall, J., concur. Robinson, Thompson, Buice & Harben, Sam S. Harben, Jr., Telfoi'd, Wayne & Greer, Joe K. Telford, for appellant. Joseph H. Blackshear, Kenyon & Gunter, William B. Gunter, for appellees.

Chambers Lumber Co. v. Martin, 146 S.E.2d 529, 112 Ga. App. 826, 1965 Ga. App. LEXIS 844 (Ga. Ct. App. 1965).

Pincite

146 S.E.2d 529 (Chambers Lumber Co. v. Martin) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related