New London Square, Ltd. v. Diamond Electric & Supply Corp.
New London Square, Ltd. v. Diamond Electric & Supply Corp.
Opinion of the Court
The appellee corporation, by its president, filed a materialman’s claim of lien dated November 30,1972 and recorded in the Cobb County Superior Court clerk’s office on December 5. This was followed by a foreclosure suit, in which the appellant owner moved for summary judgment on the ground that the lien claim, not having been attested, was not entitled to record and therefore void. It appeals from the denial of summary judgment.
We are called on to construe Code Ann. § 29-405 to decide whether the words "or other registrable instrument” include a materialman’s claim of lien. The section reads in part: "To authorize the record of any deed, whether a deed to realty or personalty, or of a mortgage, bond for title or other registrable instrument, if executed in this State, it must be attested or acknowledged as hereinafter provided.” (E.g., as in Code § 29-406, by a judge, notary public, etc.). The 1910 Code and previous codes do not contain this phrase, but begin simply: "In order to authorize the record of a deed to realty or personalty, if executed in this State...” We find the language introduced by Ga. L. 1924, p. 83, the caption of which reads: "An act to provide that city courts created by Act of General Assembly of the State of Georgia shall be courts of record and that deeds, mortgages, bonds for title, and other registrable instruments witnessed by the judge, clerk or deputy clerk of city courts shall be entitled to record.” It was incorporated in the 1933 Code and of course now refers to superior courts as well as city courts of statutory origin, but the purpose of the Act is obviously to enlarge the jurisdiction of such courts, not to change the requirements for the type of instrument entitled to registration. At the time of its passage, and since 1876, mortgages to be entitled to record were required to be
If we are correct that the Act of 1924 was not directed toward a change in the type of instrument to be recorded but rather to the courts where this might be done, then Broxton Artificial Stoneworks v. Jowers, 4 Ga. App. 91 (60 SE 1012) would be controlling. This case held that it was not necessary for the party claiming the lien to sign it, from which it follows that the signature need not be attested. This opinion was followed in Southwire Co. v. Metal Equipment Co., 129 Ga. App. 49 (2) (198 SE2d 687), written in 1973 and again stating that the signature was surplusage. Code Ann. § 67-2002 (2) setting out the statutory form of a claim for lien to allow it to be filed for record does not mention signature or attestation, and has been on the books since its appearance in the Code of 1873.
We conclude that failure to have the signature of the claimant attested prior to recordation does not affect the viability of the lien, and that the trial court properly denied the motion for summary judgment.
Judgment affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.