Rome Brick Co. v. West

67 S.E. 400, 134 Ga. 65, 1910 Ga. LEXIS 110

Opinion

Atkinson, J.

1. In so far as it was sought to foreclose a lien this case is controlled by the ruling in Pike Brothers Lumber Co. v. Mitchell, 132 Ga. 675 (64 S. E. 998), where it was held: “In order to foreclose a materialman’s lien for material furnished a contractor to be used' in improving the property of another, it is necessary that the materialman have judgment against the contractor in a previous action, or the contractor must be sued concurrently in the foreclosure proceedings with the owner of the property improved. If the contractor be adjudged a bankrupt, so that no judgment in personam can be had against him in an action at law, his immunity from liability to a personal judgment will not give the materialman a right to foreclose his lien in equity against the property improved.”

2. The prayer to recover a general judgment against the estate of the deceased landowner was stricken from the petition by amendment.

Judgment affirmed.

All the Justices concur.