Opinion
37554.
DECIDED FEBRUARY 13, 1959.
Claim. Gwinnett Superior Court. Before Judge Clinkscales. December 1, 1958.
Howard Oliver, Jr., for plaintiff in error.
Joseph E. Cheeley, Jr., contra.
1. Where it appears from the record, as here, that a claim affidavit and bond were filed and heard in the justice court and appealed to the superior court where the case was heard de novo on its merits, the issue being whether the claimant should prevail over the mechanic's lien of the plaintiff, the absence of the affidavit and bond in question in the superior court may not be raised for the first time in this court as against the appeal of the claimant from an adverse judgment rendered by the superior court against him.
2. Failure to record a conditional bill of sale has the same effect as failure to record a deed of bargain and sale, and, therefore, although unrecorded, the claimant's instrument here is superior in rank to the subsequent lien of the plaintiff which was one created by operation of law.
DECIDED FEBRUARY 13, 1959.
This is an appeal from a judgment rendered by the Judge of the Superior Court of Gwinnett County against Associates Discount Corporation, the claimant in a case involving foreclosure of a mechanic's lien under Code § 67-2003 by K. B. Willard against an automobile delivered to him for repairs by Vyron Adams, and on which he performed work of the value of $192.50. Willard's affidavit was filed in a justice court on April 9, 1957. On July 23, 1957, the plaintiff in error, an adverse judgment having been rendered against it in the justice court, filed an appeal to Gwinnett Superior Court together with bond for the eventual condemnation money payable to Willard. The bill of exceptions in this case recites that on June 13, 1957, "the Associates Discount Corporation filed a claim and issued a forthcoming bond and replevy bond and took possession of the automobile." This claim was specified in the bill of exceptions as a part of the record by the plaintiff in error, but the Clerk of the Superior Court of Gwinnett County, in response thereto certified "that the claim referred to in Item 3 of the within bill of exceptions was never filed in this office, and therefore I am unable to forward copy of same." No evidence is included in the record except that the bill of exceptions has attached thereto a copy of the retention title contract for the automobile in question dated October 15, 1956, between Adams and Cuz Bell Motor Company, the assignor of the plaintiff in error. The bill of exceptions also recites that this bill of sale, together with "the recording thereon" was introduced in evidence. There is also a stipulation, appearing in the bill of exceptions, that K. B. Willard did repair the automobile for a price of $192.50. The case was heard de novo by the superior court on its merits without the intervention of a jury, the issue being whether the claimant should prevail over the mechanic's lien of the plaintiff, and judgment was entered in favor of the latter to which the claimant excepted.
1. It is contended by the defendant in error that the judgment should be affirmed for the reason that no proper claim affidavit and bond for damages as provided by Code §§ 39-801 and 39-802 was filed by the plaintiff in error. Claims in a case pending before a justice of the peace court are controlled by Code §§ 24-1416 and 24-1617, and are returnable to the justice court. See also Ridling v. Stewart, 77 Ga. 539 (2). When an appeal is entered from the judgment of a justice of the peace, it is the duty of that officer to transmit the same to the clerk of the superior court. Code § 6-302. Ordinarily, an appeal from the justice court to the superior court is not subject to dismissal because of irregularities in the transmission of the transcript, or defects which should have been the subject of objection before the case was tried in the justice court. Talbott v. Collier, 102 Ga. 550 ( 28 S.E. 225); Cannon v. Sheffield, 59 Ga. 103; Robison v. Medlock, 59 Ga. 598; Sanders v. Mathewson, 121 Ga. 302 ( 48 S.E. 946). The fact that the clerk of the superior court had not filed the claim affidavit and bond, assuming that the justice of the peace should have sent them up with the appeal and did not do so, would not be proof that no claim affidavit and bond were filed in the justice court. Although failure to file a proper claim bond subjects the claim to dismissal, yet the presumption is, where the claim is pending in the superior court, that the affidavit and bond have been properly filed, and, if this is not true, a motion to dismiss the claim with an affirmative showing of this fact should be made by the adverse party. Hand v. Frank W. Hall Merchandise Co., 91 Ga. 130 (1) ( 16 S.E. 644); Drummond v. Drummond, 71 Ga. App. 474(1) (31 S.E.2d 74). The fact that these instruments are not in the record on appeal, and the further fact that they were not filed in the office of the clerk of the superior court on the appeal to that court may not be raised for the first time here, and will not result in a dismissal of the claim by this court.
2. The conditional bill of sale, which is practically the only evidence in this record, affirmatively shows that legal title to the automobile in question never vested in the defendant Adams, who was engaged in the purchase of the automobile and had an equity therein to the extent of his purchase money only. It was executed on September 15, 1956, recorded in the county of residence of the vendor on September 20, and recorded in the county of residence of the vendee on April 18, 1957, 9 days after the affidavit of foreclosure of the mechanic's lien was filed. The sole question for consideration is therefore the relative priorities of an unrecorded conditional bill of sale and an affidavit of foreclosure of a mechanic's lien on personalty under Code § 67-2401. The lien is one arising not by contract but by operation of law. It has been well settled that since the act of 1931 (Ga. L. 1931, p. 153; Code §§ 67-109, 67-1305) an unrecorded bill of sale to secure debt has the same effect as a deed of bargain and sale, and, therefore, although unrecorded, is superior in rank to subsequent liens created by law. Mackler v. Lahman, 196 Ga. 535(1) ( 27 S.E.2d 35); Manchester Motors v. Farmers Merchants Bank of Manchester, 91 Ga. App. 811 ( 87 S.E.2d 342). By the act of 1957 (Ga. L. 1957, p. 167; Code, Ann., § 67-1403) "the effect of failure to record a conditional bill of sale shall be the same as is the effect of failure to record a deed of bargain and sale." It follows that this instrument, although it was unrecorded in the proper county as of the time this action was commenced, has priority over it. The only difficulty in arriving at this conclusion is that there is nothing in this record to show when or if a claim of lien was ever filed by Willard against Adams in the first instance, or to show when the work on the automobile was completed. It does appear that when the automobile was levied upon it was in the custody of Adams, and it further appears that Adams acquired whatever right or title to the automobile that is in him under his contract of conditional sale with Cuz Bell Motor Company. That contract gave him no title against which the lien could operate so long as the paramount outstanding title remained in the plaintiff in error. Accordingly, the trial court erred in entering up judgment against the claimant.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.