Supreme Court of Georgia, 1910

Rome Brick Co. v. West

Rome Brick Co. v. West
Supreme Court of Georgia · Decided February 18, 1910 · Atkinson
134 Ga. 65; 67 S.E. 400; 1910 Ga. LEXIS 110

Rome Brick Co. v. West

Opinion of the Court

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.

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