Opinion
35576.
DECIDED APRIL 19, 1955.
Materialman's lien. Before Judge Liles. Gwinnett City Court. November 26, 1954.
W. L. Nix, for plaintiff in error.
Allison Pittard, Paul Webb, Jr., contra.
1. Where, in an action to recover a general judgment against an alleged owner-contractor for materials and labor furnished to improve a designated tract of land, composed of three separately numbered lots located on a named street in DeKalb County, the jury returns a verdict in favor of the general judgment against the defendant owner-contractor for the amount alleged to be due, and also in the same verdict finds in favor of the special lien on the described property, which is the entire tract, a judgment attaching the lien against only a portion of the property, to wit, one of the numbered lots, may be void ( Farmer's Loan Trust Co. v. Candler, 87 Ga. 241, 13 S.E. 560; Candler v. Farmer's Loan Trust Co., 96 Ga. 44, 22 S.E. 715), but the verdict attaching the lien to the entire tract, which was authorized by the evidence, is not void, and the fact that the judgment does not follow the verdict is not a proper ground of a motion for a new trial. Potts v. City of Atlanta, 140 Ga. 431 ( 79 S.E. 110); Gray v. Conyers, 70 Ga. 349; Frazier v. Beasley, 59 Ga. App. 500 ( 1 S.E.2d 458).
2. Where, in such a case as indicated in division 1, the defendant, against whom the jury returned a verdict finding him liable personally for the materials and labor furnished under the alleged contract, does not in this court argue or generally insist upon the general grounds of his motion for a new trial as they appertain to that portion of the verdict, such grounds as to that portion of the verdict will be treated as abandoned.
3. Where, in such a case as indicated in division 1, it appears that the claim of lien upon which the action is partly based was recorded in the records of the Superior Court of DeKalb County, and recites that the lien is claimed on the property of the defendant, naming him, "located at DeKalb County, Georgia, 5532 Clay Drive, 5536 Clay Drive, 5540 Clay Drive," the property on which the lien is sought to be attached is sufficiently described to constitute a compliance with the requirements of Code § 67-2002 (2) concerning the description of the premises upon which the lien is sought ( Horton v. Murden, 117 Ga. 72, 43 S.E. 786; Brice v. Sheffield, 118 Ga. 128, 44 S.E. 843; Blumberg v. Nathan, 190 Ga. 64, 8 S.E.2d 374); and the lien is not inadmissible as inadequately describing the property, nor is it inadmissible for any of the other reasons assigned in special ground 1 of the motion for new trial.
4. In consequence of what has been said in the foregoing divisions of this opinion, the trial court did not err in denying the motion for new trial, which consisted of the general grounds as they related to the special lien and one special ground.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.
DECIDED APRIL 19, 1955.
Alman G. Hockenhull brought an action in the City Court of Gwinnett County against Horace Love, a resident of Gwinnett County, to obtain a general judgment for materials and labor furnished the defendant for the improvement of certain described realty belonging to the defendant in DeKalb County, and to have a special lien declared against the property. The material allegations of the petition, as amended, are substantially these: On or about November 10, 1952, the plaintiff entered into an oral contract with the defendant, that, in consideration of $600, the plaintiff would furnish all materials and labor necessary to install three septic tanks and drain fields on a certain tract in DeKalb County, Georgia, then claimed by the defendant to belong to him, to wit, the property containing lots numbered 5532, 5536, and 5540 Clay Drive. Said septic tanks and drain fields were to be built and installed pursuant to the then-existing specifications and requirements of the DeKalb County Building Code. Said tanks were to be constructed of concrete, 3 feet by 6 feet by 5 feet, each with a four-inch concrete lid. Said drain fields were each to be 200 feet long, of 4-inch drain tile, bedded on gravel. In the period from November 10 to November 21, 1952, pursuant to said contract, the plaintiff did furnish said materials and did perform said labor in the installation of the three septic tanks. The installations were pursuant to the requirements of the DeKalb County Building Code, and were passed upon and approved on or about November 21, 1952, by the official inspector of the DeKalb County Board of Health. The materials and labor were of the value of $600. The materials were furnished to the defendant, and the labor was performed for the defendant pursuant to a single contract to install the septic tanks and drain fields on the said property, and the materials and labor were to be used indiscriminately in installing the three tanks and drain fields. The materials and labor were used to improve the property located at 5532, 5536, and 5540 Clay Drive in DeKalb County, Georgia. On November 10 and November 21, 1952, and at all times during which the plaintiff furnished materials and labor in installing the tanks and fields, the defendant was the owner of the property known as No. 5532 Clay Drive, DeKalb County, Georgia, lying and being in Lot 39, Block C of the subdivision of Guilford Village, as per plat by C. R. Roberts, C. E., recorded in Plat Book 17, page 48, DeKalb County records, and being more particularly described as follows (here follows the detailed description of No. 5532 Clay Drive). The plaintiff has performed his contract and is due from the defendant $600 plus interest from November 21, 1952, for which demand has been made by the plaintiff and refused by the defendant. Within the time required by law and on February 10, 1953, the plaintiff filed and had his claim of lien recorded, covering the materials and labor. The claim of lien, which is attached to and made a part of the petition, reads as follows: "Georgia: County: Almand G. Hockenhull, Roswell, Georgia, a materialman engaged in the business of furnishing materials and labor for the improvement of real property, claims a lien on the property of Horace Love, owner, for materials and labor furnished Horace Love, contractor, and used in improving the following described property: Located at DeKalb County, Georgia, 5532 Clay Drive, 5536 Clay Drive, 5540 Clay Drive. This lien is claimed for installing septic tanks and drain fields on the above described property. Said lien is claimed against said property for materials and labor furnished and used in improving the property in the amount of $600. This lien is filed and recorded in the time and manner prescribed by law. . ." This action is brought within the time prescribed by law and within 12 months from the date said materials and labor were furnished.
On the trial of the case, it appeared from the evidence without contradiction that the plaintiff and the defendant entered into an agreement for the improvement of No. 5532 Clay Drive at one time, and later entered into the agreement to improve Nos. 5536 and 5540 Clay Drive. The jury returned the following verdict: "We, the jury, find in favor of plaintiff and that said plaintiff have special lien on said property of the amount of $600.00 and interest." The trial court entered a general judgment for the plaintiff against the defendant for $600 and a judgment giving the plaintiff a special lien on No. 5532 Clay Drive.
The defendant's motion for a new trial, based on the usual general grounds and one special ground, which complains of the introduction of the claim of lien in evidence because of the inadequacy of the description, was denied, and he has brought the present writ of error to have that judgment reviewed.