Summary
In Adair Mtg. Co. v. Allied Concrete Enterprises, 241 Ga. 121 (243 S.E.2d 888), it was held that the beginning of Code Ann. § 67-2002 (3), which sets forth the time limitations for the commencement of actions, applies only to actions brought against contractors and not to actions against the owner of the real estate. Perforce, the notice required to be filed in regard to the commencement of such action is notice of the commencement of suit against the contractor, not the landowner.
Summary of this case from Hancor, Inc. v. Fleming FarmsOpinion
33350.
ARGUED MARCH 14, 1978.
DECIDED APRIL 3, 1978.
Certiorari to the Court of Appeals of Georgia — 144 Ga. App. 354 ( 241 S.E.2d 267) (1977).
King Spalding, A. Felton Jenkins, Jr., G. Lemuel Hewes, H. Lamar Mixson, Jr., for appellant.
Zachary Segraves, Wayne F. Carmichael, for appellee.
Stokes Shapiro, Ira J. Smotherman, Jr., Sally A. Blackmun, amicus curiae.
This is a materialman's lien case. Certiorari was granted to review the Court of Appeals opinion in Adair Mtg. Co. v. Allied Concrete Enterprises, 144 Ga. App. 354 ( 241 S.E.2d 267) (1977), where that court held that: "The requirement of the first sentence of Code § 67-2002 [3] as to the time within which an action may be commenced relates to the [materialman's] action against the contractor and not to the action against the owner of the real estate." (Matter in brackets added.)
See Fayetteville-85 Associates, Ltd. v. Samas, Inc., 241 Ga. 119 (1978), upholding the constitutionality of Code Ann. § 67-2002.
In arriving at that decision the Court of Appeals relied upon two decisions of this court, Lombard v. Trustees, Young Men's Library Assn. Fund, 73 Ga. 322, 324 (1885), and Southern R. Co. v. Crawford Slaten Co., 178 Ga. 450 ( 173 S.E. 91) (1934), plus several cited decisions of the Court of Appeals. Numerous other decisions could also have been cited: see, for example, Griffin Bros. v. Gainesville Iron Works, 144 Ga. 840, 842-843 ( 88 S.E. 201) (1916); Smith v. Walker, 194 Ga. 586 (1) ( 22 S.E.2d 160) (1942); Bryant v. Jones, 90 Ga. App. 314 (1) ( 83 S.E.2d 46) (1954); Jordan Co. v. Adkins, 105 Ga. App. 157 (1) ( 123 S.E.2d 731) (1961); Allied Asphalt Co. v. Cumbie, 134 Ga. App. 960 (1) ( 216 S.E.2d 659) (1975); Old Stone Mtg. c. v. New Ga. Plumbing, 140 Ga. App. 686, 690 ( 231 S.E.2d 785) (1976), as well as the more recent Logan Paving Co. v. Liles Const. Co., 141 Ga. App. 81, 83 ( 232 S.E.2d 575) (1977).
The owner in the case before us cites Chamblee Lumber Co. v. Crichton, 136 Ga. 391 ( 71 S.E. 673) (1911), which was distinguished in Southern R. Co. v. Crawford Slaten Co., 46 Ga. App. 424 ( 167 S.E. 756) (1933), with the approval of this court in Southern R. Co. v. Crawford Slaten Co., supra, 178 Ga. at 451. The owner also cites dicta in McAuliffe v. Baum, 142 Ga. 590, 591 ( 83 S.E. 239) (1914), which dicta has not been followed.
The owner argues that the Southern R. Co. decision, supra, did not take Code Ann. § 67-2301 (1) into account. The earlier Lombard v. Trustees decision, supra, did however.
The owner argues that the 1968 amendment (Ga. L. 1968, pp. 317-319) to Code § 67-2002 (3), was intended to require foreclosure of the lien within 12 months, as shown by the caption to that amendment. The 1968 Act amended a 1941 amendment, Ga. L. 1941, pp. 345-348, and did not impose a 12 month requirement upon those provisions of Code § 67-2002 (3) or § 67 2301 (1) which are applicable to the facts of this case (e.g., the contractor has not been adjudicated a bankrupt). 20 EGL, Liens, §§ 165, 166; see 1968 Journal of the House, pp. 312-313.
After consideration, we have determined that the majority opinion of the Court of Appeals in this case is correct. Any inference to the contrary in Dixie Lime c. Co. v. Ryder Truck Rental, Inc., 140 Ga. App. 188 ( 230 S.E.2d 322) (1976), will not be followed.
Judgment affirmed. All the Justices concur, except Marshall, J., who is disqualified.