Hull & Co. v. Anderson Lumber Co.

Court of Appeals of Georgia

Hull & Co. v. Anderson Lumber Co.

86 S.E. 257, 17 Ga. App. 40, 1915 Ga. App. LEXIS 245

CourtCourt of Appeals of Georgia

DecidedSeptember 9, 1915

Docket6059

StatusPublished

Cited by1 cases

This text of 86 S.E. 257 (Hull & Co. v. Anderson Lumber Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hull & Co. v. Anderson Lumber Co., 86 S.E. 257, 17 Ga. App. 40, 1915 Ga. App. LEXIS 245 (Ga. Ct. App. 1915).

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Opinion

Wade, J.

1. “Statutes allowing liens in favor of certain persons and classes of persons are in derogation of the common-law, and therefore are to be strictly construed.” Seeman v. Schultze, 100 Ga. 603 (28 S. E. 378). See also Gross v. Butler, 72 Ga. 187; Reaves v. Meredeth, 123 Ga. 444-448 (51 S. E. 391); Howell v. Atkinson, 3 Ga. App. 58 [41]*41(59 S. E. 316); Trapp v. Watters, 6 Ga. App. 480 (65 S. E. 306). Eor the same reason, statutes allowing liens in favor of certain persons and classes of persons against particular property specified in the statute must likewise be construed strictly, and cannot by judicial interpretation be extended to include other and different property.

Decided September 9, 1915.

Foreclosure of lien; from city court of Waycross — Judge McDonald. September 23, 1914.

Parker & Walker, B. B. Smith, for plaintiffs. Wilson, Bennett & Lambdin, for defendant.

2. Section 3358 of the Civil Code provides that “All persons furnishing sawmills with timber, logs, provisions, or any other thing necessary to carry on the work of sawmills shall have liens on said mills and their products.” It does not provide for a lien on any property except “sawmills and their products;” and mules used in carrying on the sawmill business can not be held to be a part of such mills, or “products” thereof, and the trial judge did not err in dismissing the levy as to the mules. The word sawmill “does not include any detached personalty such as. .vehicles, draft animals, etc.” Empire Lumber Co. v. Kiser, 91 Ga. 643 (4), 644 (17 S. E. 972).

3. Even if it be conceded that section 3366, subdivision 6, intends that a counter-affidavit contesting the amount and justice of a lien claimed under section 3358 shall be filed with the levying officer, and “form an issue to be returned to the court and tried as other cases,” there is nothing whatever in the record to show that the counter-affidavit in this case was not first delivered to the levying officer or “filed” with him, and thereafter returned to the court by him and then marked “filed” by the clerk. In the absence of anything to the contrary, the presumption exists that the regular course was pursued.

4. In the state of the record, no question as to obtaining release from the erroneous taxation of costs is properly before us for determination.

5. The trial court did not err in taxing against the plaintiffs in the lien execution the costs incurred in keeping the mules levied upon at then-instance. Judgment affirmed.

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Wade, J.

1. “Statutes allowing liens in favor of certain persons and classes of persons are in derogation of the common-law, and therefore are to be strictly construed.” Seeman v. Schultze, 100 Ga. 603 (28 S. E. 378). See also Gross v. Butler, 72 Ga. 187; Reaves v. Meredeth, 123 Ga. 444-448 (51 S. E. 391); Howell v. Atkinson, 3 Ga. App. 58 [41]*41(59 S. E. 316); Trapp v. Watters, 6 Ga. App. 480 (65 S. E. 306). Eor the same reason, statutes allowing liens in favor of certain persons and classes of persons against particular property specified in the statute must likewise be construed strictly, and cannot by judicial interpretation be extended to include other and different property.

Decided September 9, 1915.

Foreclosure of lien; from city court of Waycross — Judge McDonald. September 23, 1914.

Parker & Walker, B. B. Smith, for plaintiffs. Wilson, Bennett & Lambdin, for defendant.

2. Section 3358 of the Civil Code provides that “All persons furnishing sawmills with timber, logs, provisions, or any other thing necessary to carry on the work of sawmills shall have liens on said mills and their products.” It does not provide for a lien on any property except “sawmills and their products;” and mules used in carrying on the sawmill business can not be held to be a part of such mills, or “products” thereof, and the trial judge did not err in dismissing the levy as to the mules. The word sawmill “does not include any detached personalty such as. .vehicles, draft animals, etc.” Empire Lumber Co. v. Kiser, 91 Ga. 643 (4), 644 (17 S. E. 972).

3. Even if it be conceded that section 3366, subdivision 6, intends that a counter-affidavit contesting the amount and justice of a lien claimed under section 3358 shall be filed with the levying officer, and “form an issue to be returned to the court and tried as other cases,” there is nothing whatever in the record to show that the counter-affidavit in this case was not first delivered to the levying officer or “filed” with him, and thereafter returned to the court by him and then marked “filed” by the clerk. In the absence of anything to the contrary, the presumption exists that the regular course was pursued.

4. In the state of the record, no question as to obtaining release from the erroneous taxation of costs is properly before us for determination.

5. The trial court did not err in taxing against the plaintiffs in the lien execution the costs incurred in keeping the mules levied upon at then-instance. Judgment affirmed.

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Bluebook (online)

86 S.E. 257, 17 Ga. App. 40, 1915 Ga. App. LEXIS 245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hull-co-v-anderson-lumber-co-gactapp-1915.

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