Opinion
39697.
DECIDED OCTOBER 8, 1962.
Materialman's lien. Fulton Civil Court. Before Judge Parker.
William T. Brooks, James B. McGregor, for plaintiffs in error.
John L. Westmoreland, John L. Westmoreland, Jr., Harry P. Hall, Jr., M. K. Pentecost, Jr., contra.
Where a joint action is instituted by a materialman against a subcontractor for materials furnished him by the materialman to be used in a school building being constructed by the Cobb County Board of Education to recover for the price of the materials as shown by invoices attached to the petition, and against the principal and surety on the general contractor's bond which was attached to the petition, to which the subcontractor was not a party, a joint plea by the defendants of the pendency of a prior action filed by the plaintiff against the subcontractor on open account is not a ground on which the joint action as to all parties may be abated.
DECIDED OCTOBER 8, 1962.
The Ingalls Iron Works Company brought suit against the Western Casualty Surety Company, United Builders, and Howard E. Caldwell, d/b/a Caldwell Metal Company, in the Civil Court of Fulton County.
The petition alleged that the defendants were jointly and severally liable to the plaintiff in the sum of $4,029.86 for certain building materials it had sold to Howard E. Caldwell, subcontractor, for a construction project wherein United Builders was the general contractor, Caldwell a subcontractor and Western Casualty Surety Company the surety on the general contractor's payment bond. Counsel for the defendants filed a joint plea in abatement alleging that the debts sued on were the subject of a suit on open account against defendant Caldwell which the plaintiff had pending in DeKalb Superior Court and that defendant United Builders was a garnishee in connection with said pending suit. Paragraph 7 of the petition alleged as follows: "7. That plaintiff is a materialman and provided to defendant, Howard E. Caldwell, d/b/a Caldwell Metal Company, a subcontractor of defendant, United Builders, certain steel beams and materials which said Caldwell Metal Company used in the performance of its subcontract with said defendant partnership and which steel went into the construction of the Boggs Road Elementary School, all as shown by invoices attached hereto and made a part hereof and marked exhibit "B" in the total amount of $4,029.86." The invoices were made out to Caldwell Metal Company. The court denied the plea, to which judgment the defendants jointly except.
The joint plea in abatement in this case is not the proper ground upon which the joint action as to all parties defendant may be abated. The suit pending against the subcontractor is upon open account. The present suit against the general contractor and its surety, upon the general contractor's bond, is an action on the bond to which the subcontractor is not a party. All of the defendants or any one or more of them could have filed special demurrers to the petition on the ground of misjoinder of parties and causes of action and the subcontractor could have filed a separate plea in abatement as to him, but the pendency of the action against the subcontractor would not be a ground of abatement of the present action as to the general contractor and its surety. The court did not err in overruling the joint plea of abatement filed by the defendants.
Judgment affirmed. Bell and Hall, JJ., concur.