Newman v. Cash

169 S.E. 520, 47 Ga. App. 39, 1933 Ga. App. LEXIS 282

Opinion

Guerry, J.

1. Where an attempt is made to foreclose a laborer’s lien, a demand must be alleged, and where on the trial of a counter-affidavit to such foreclosure the evidence shows that no such demand was made, a judgment o'f the trial court finding in favor of the lien is error. Oivil Code (1910), § 3366 (1). In the present case the evidence of plaintiffs in the justice’s court did not show a demand, and, the defendant having denied such a demand, the verdict finding in favor of the lien was contrary to law.

2. By § 3356 of the Code of 1910, “proprietors of planing-mills and other similar establishments” (italics ours) are given liens for work done on material furnished by others. In Murphey v. McGough, 105 Ga. 816 (31 S. E. 757), it was held that a sawmill is within the meaning of the words “other similar establishments.” The evidence of the plaintiffs in the court below established the fact that they were sawmill proprietors. Therefore, under the authority of Evans v. Beddingfield, 106 Ga. 755 (32 S. E. 664), and Jones v. Newsome, 27 Ga. App. 386 (108 S. E. 558), they were, if entitled to anything, entitled to a lien as provided in § 3356, supra, and not to a laborer’s lien.

Decided May 24, 1933. M. J. Head, for plaintiff in error. I. N. Clieney, contra.

3. The judge of the superior court therefore erred in overruling and dismissing the certiorari.

Judgment reversed.

Broyles, O. J., and MacIntyre, J., concur.