Milam v. Solomon

Crawford, Justice. James C. Milam, with the purpose of forclosing a lien, made oath that William Solomon, as the owner of a steam saw-mill, was indebted to him in the. sum' of $1,528.21 for provisions and things necessary to carry on the works of said mill — that a demand had been made on his agent for the amount due — that said agent had refused to pay — and that deponent had filed his affidavit, [56] which is the prosecution of his lien, within one year from the time the said debt became due. To this affidavit was attached an account for the sum claimed. By counter-affidavit the case was carried to the superior court, where a motion to dismiss was made— (1) Because the affidavit did not state that the articles had been furnished by the deponent. (2) Because the affidavit did not state or show that the demand for payment, and the refusal to pay, was made after the debt became due, nor when the said demand was made. (3) Because it does not appear that the demand was made by deponent, nor by any one authorized to make it for him. The motion to dismiss was sustained by'the court and the plaintiff excepted. Under the ruling in 46 Ga., 197, the affidavit to foreclose this lien could be upheld ; but we are unable to reconcile that decision with the one made in 54 Ga., 138, wherein it was held that such an affidavit was insufficient in law to be the foundation of this statutory proceeding. The consideration of the same question was before this court again in 56 Ga., 148, and there the ruling in the 54th was followed. It was held that the demand for payment and the time must not be left to implication : “ It must be averred in the plaintiff’s affidavit that a demand for, the payment of the debt, after it became due, has been made on the owner, his agent or lessee, and that he has refused to pay.” This,-.then, being the judgment of the court, so distinctly enunciated on this question, we are constrained to follow it, and to hold that the affidavit is defective, and that the judgment .below must be, and is hereby, affirmed. Judgment affirmed.