Opinion
20864.
SUBMITTED APRIL 12, 1960.
DECIDED JUNE 9, 1960. REHEARING DENIED JUNE 28, 1960.
Specific performance. Fulton Superior Court. Before Judge Pharr. February 18, 1960.
P. C. King, Jr., Ben J. Camp, Mary R. Brady, for plaintiffs in error.
Davis Stringer, Robt. H. Stringer, John L. Coney, contra.
When the allegations of a petition are sufficient to show that the petitioners are entitled to some of the substantial relief prayed, it is error to dismiss it on general demurrer.
SUBMITTED APRIL 12, 1960 — DECIDED JUNE 9, 1960, — REHEARING DENIED JUNE 28, 1960.
Roy L. Ayers and A. C. White, Jr., brought a petition against Richard P. Baker and Thomas L. McGraw, in which it was alleged: On November 7, 1959, Ayers entered into a contract with McGraw whereby McGraw agreed to build a swimming pool on the property of Ayers for $2,600, and Ayers has paid all of the contract price except a balance of $866.67, which he is ready and willing to pay into court when the pool is completed. Certain specified work is necessary for the completion of the pool. On October 24, 1959, White and McGraw entered into a contract whereby McGraw agreed to build a swimming pool on the property of White for $2,170, and White has paid all of the contract price except a balance of $724, and is ready and willing to pay this balance into court when the pool is completed. Certain specified work should be done to complete the pool. Copies of the contracts are attached as exhibits. The defendant Baker has filed a claim of lien on the property of Ayers in the amount of $2,207.52, and this amount with that already paid McGraw by Ayers would exceed the contract price. Baker has filed a claim of lien on the property of White in the amount of $394.68, and this amount together with the amount required to complete the pool would exceed the contract price. Copies of the claims of lien are attached as exhibits. More than one person, namely, McGraw and Baker, are claiming that the petitioners owe money, and the petitioners apply to a court of equity for interpleader as provided by Code § 37-1503. On January 15, 1960, Baker filed a suit against McGraw in the Civil Court of Fulton County, a copy of which petition is attached as an exhibit. The petitioners ask for a bill of peace as provided by Code § 37-1501, and for a consolidation of the pending suit in the Civil Court of Fulton County by Baker against McGraw, as provided by § 37-1007. There is no provision in law for the petitioners to answer the petition of Baker against McGraw, in the civil court, and if Baker secures a judgment against McGraw, then Baker may proceed to foreclose his liens against the petitioners' properties. The petitioners ask for an injunction to restrain the proceedings of Baker against McGraw, since they can not protect their property rights that will be adjudicated in the case. The petitioners are informed that McGraw is threatening to leave the jurisdiction of the court and of the State. The petitioners are informed that the defendants are insolvent, and the defendant McGraw is committing waste upon their properties and will continue to do so unless restrained and enjoined. McGraw may not complete the swimming pools unless compelled to do so, and this failure would do the petitioners' properties irreparable damage.
The prayers were: for process; that a receiver be appointed to take charge of the premises in controversy and receive money, to extinguish liens and impound funds until final decree; that the defendants be required to pay the receiver $300 as fees until final decree, plus $500 attorney's fees for the prosecution of the action; that the defendants be required to show cause why the prayers of the petitioners should not be granted; that the defendants be temporarily and permanently enjoined from committing acts of waste upon the properties as set out; that the defendant McGraw be stayed by the writ of ne exeat republica from leaving the State, and going beyond the jurisdiction of the court; that McGraw be ordered to perform his contracts, complete the swimming pools, and pay to Baker the amounts owed to him; that Baker be ordered to desist from creating or enforcing liens against the petitioners' properties, and to prove the amount due him by McGraw; that the proceedings in the Civil Court of Fulton County in the action of Baker against McGraw be enjoined; and for such other and further relief as is equitable and just.
A rule nisi was issued, and the writ of ne exeat was issued against McGraw. An order was entered temporarily restraining the enforcement of any liens against the petitioners' properties.
The petitioners amended their petition and asserted that Baker and McGraw were actually partners in the construction of the swimming pools on the petitioners' properties. Both defendants assured the petitioners that all materials would be paid for by the defendants, and that all the petitioners had to do was to pay the stipulated contract price. The defendants have conspired to defraud the petitioners by stating that they were partners while constructing the pools, but before completing the pools, and after collecting a greater portion of the contract price, they announced that they were not partners. Baker has been an employee and agent of McGraw for over four years, and they were in fact partners in the construction of the swimming pools of the petitioners.
The defendants filed separate general and special demurrers. The general demurrers of both defendants were sustained, the temporary restraining order and writ of ne exeat dissolved, and the petition was dismissed. The exception is to this order.
The present case comes within the observations of Mr. Justice Bleckley in Kupferman v. McGehee, 63 Ga. 250, 260 (7): "Not only earnestly and devoutly does the complainant pray, but he prays comprehensively. He wants relief, much of it. He seems to ask for everything that he can think of, and then to throw in a general petition to cover oversights. Over-zealous, perhaps, he hurries into some inconsistencies, and possibly no court can grant all he begs for. But a suitor is not to be turned out of court for his much praying." See also Pierce v. Middle Ga. Land c. Co., 131 Ga. 99, 102 ( 61 S.E. 1114); Wimpee v. Burt, 148 Ga. 418, 419 ( 96 S.E. 993).
The petitioners pray that McGraw be temporarily and permanently enjoined from committing acts of waste, and that he be required to specifically perform his contract. "If the contractor abandons his contract, the owner may have it completed and charge the necessary cost of completion against the contract price, before being liable either to the contractor or to the materialman." Prince v. Neal-Millard Co., 124 Ga. 884, 893 ( 53 S.E. 761, 4 Ann. Cas. 615); Spirides v. Victory Lumber Co., 76 Ga. App. 78, 81 ( 45 S.E.2d 65). If McGraw has abandoned his contracts, the petitioners do not need to restrain him from committing waste; nor would they be entitled to specific performance of the contract, since the law authorizes completion of the contract by the owner before becoming liable either to the contractor or the materialmen.
While the allegations of a pleading are to be construed most strongly against the pleader when attacked by general demurrer ( Lee v. City of Atlanta, 197 Ga. 518, 520, 29 S.E.2d 774; Dumas v. Burleigh, 209 Ga. 241, 243, 71 S.E.2d 545), the final test of the sufficiency of a petition as against a general demurrer is whether the defendants can admit all that is alleged and escape liability. Code § 81-304; Frazier v. Southern Ry. Co., 200 Ga. 590, 597 ( 37 S.E.2d 774); Johnson v. John Dere Plow Co., 214 Ga. 645, 648 ( 106 S.E.2d 901).
The real point at issue between the parties here is the action filed by Baker against McGraw in the Civil Court of Fulton County, to which action there is attached a statement of account which shows that Baker is suing McGraw for amounts claimed to be due by reason of work done or materials furnished to improve prove the property of each of the petitioners. By amendment the petition alleges that Baker and McGraw were actually partners in the construction on the petitioners' property, that they have conspired to defraud the petitioners by claiming that they were partners during the construction, but after collecting a greater portion of the contract price, they have announced that they were not partners.
Except as provided in Code § 67-2002 (3), as amended (Ga. L. 1941, p. 345; Ga. L. 1952, pp. 291, 292; Ga. L. 1953, pp. 582, 585; Ga. L. 1956, pp. 185, 189; Ga. L. 1956, pp. 562, 568), there can be no valid foreclosure of a materialman's lien without a judgment against the contractor. Hood Brick Co. v. Mangham, 161 Ga. 457 ( 131 S.E. 172); Smith v. Walker, 194 Ga. 586 ( 22 S.E.2d 160). Since amounts are included in the suit by Baker against McGraw which are claimed to be due for work done and material furnished to improve the property of each of the petitioners, each of the petitioners is concerned with, and interested in, the validity of the action between Baker and McGraw. If, as alleged, Baker and McGraw conspired to defraud the petitioners in the manner alleged, there could be no valid judgment in favor of Baker against McGraw. However invalid, Baker might seek to rely upon such judgment as the basis for the foreclosure of the liens filed by Baker against the property of each of the petitioners. Such a judgment, not being void on its face, would not be subject to collateral attack by the petitioners in the proceedings by Baker to foreclose the liens he has recorded against properties of the petitioners (Code § 110-708), and unless a judgment is void, an affidavit of illegality is never the proper method to attack it. Dollar v. Fred W. Amend Co., 184 Ga. 432, 437, 438 ( 191 S.E. 696). Equitable intervention by the petitioners in the pending case in the civil court is not an available remedy.
The petitioners are not required to stand idly by and let a judgment be rendered which is essential to the enforcement of the liens claimed against their properties. Where, as in the present case, the general rules of law are deficient in protecting from anticipated wrong, equity will grant relief. Code §§ 37-102, 37-120. The equitable action of the petitioners against the defendants was erroneously dismissed on general demurrer.
Judgment reversed. All the Justices concur.