Royal v. McPhail

Atkinson, Justice. The plaintiff sued the defendant in the county court upon an open account for work done for and material furnished to one O’Brien, a contractor who was to furnish material to build a storehouse for the defendant. The plaintiff was a mechanic and material man, and as such furnished certain material to be used in the construction of the house. Upon the trial of the case, the plaintiff proved such facts as would satisfactorily establish the indebtedness of the defendant to him, together with the claim of lien set up by him. There was no contested question of fact, but the determination of the cause rested upon the legal sufficiency of the evidence submitted by the plaintiff to sustain his cause of action. A judgment was rendered in his favor, and to that judgment the defendant excepted, and sued out a writ of certiorari. Upon the return of the 'writ of certiorari, a motion was made to dismiss it, first, upon the ground that the petition for certiorari had not been drawn in separate paragraphs and consecutively numbered as .required by the pleading act of 1893; and secondly, upon the further ground, that there being issues of fact involved in the trial of the cáse, appeal, and not [459] certiorari, was the remedy. This motion was overruled; and upon the judgment overruling the motion to dismiss, the defendant in certiorari especially assigns error. 1. To the first proposition, it is not necessary to do more than to refer to the act. It is obvious from the language in which it is couched that it was not a part of the legislative design to extend its provisions to petitions for certiorari. "While a petition for certiorari has been held to be in a1 certain sense a suit, it does not belong to that class of suits to which pleas can be filed, and hence the act in question has no application to such a proceeding. 2. In the present case, the defendant in the court below, the plaintiff in certiorari, made no issue upon a single question of fact submitted by the plaintiff. The only substantial issue involved was one of law, as to whether upon the facts, the truth of which was conceded, the plaintiff had established a right to recover, and to have a lien in his favor attached to the property of the defendant. This being true, nothing was involved save only a question of law; and that question being referable to the legal sufficiency of the state of facts admitted to be true, the judgment of the county court thereon, by the repeated adjudications of this court, was reviewable by certiorari. See Greenwood v. Boyd & Baxter Furniture Factory, 86 Ga. 582. 3. The plaintiff sought in the court below to foreclose his lien alleged to have arisen under section 1919 of the code. In the proceeding for its foreclosure there was no allegation that “he had taken no personal security” for the payment of his debt. The cause proceeded to trial in the absence of such an allegation, and it does not appear that any evidence was submitted upon that point. No distinct issue was presented by the defendant alleging that the plaintiff had taken personal security for the payment of his debt; but after judgment in the court below, the defendant objected to the judgment and assigned as one of the reasons why it should be set aside, that the plaintiff had not [460] made the allegation in question and had submitted no proof upon that point. Had the sufficiency of this declaration been called in question by demurrer, or had a motion for a nonsuit been made at the completion of the plaintiff’s case, these questions might have arisen. But we think that after judgment, the defendant cannot he heard for the first time to urge this as an objection to its rendition. If the proceeding to foreclose the lien was defective because of the absence of such an allegation, under the present state of our law, the defect was curable by amendment. If proof of this formal fact were necessary in the absence of a demurrer to the declaration, this evidence could have been submitted in reply to a motion for a nonsuit, and we think that where the defendant waives the objection at a time and place when it could have probably been promptly met, he is too late after judgment to make this question. 4. In the present case, the plaintiff sued both the contractor and the owner of the property for whom the house was in process of erection and upon which he claimed a lien. The declaration was demurred to upon the ground of a misjoinder of parties, and this demurrer was overruled. Bnder authority of the decision of this court in Lombard v. The Trustees, etc., 73 Ga. 322, which was followed in Castleberry v. Johnston, 92 Ga. 499, it was not improper pleading for one, seeking to enforce against the owner of real estate a lien for labor and material arising under section 1979 of the code, to join in his action the owner of the realty and the person who had contracted with the latter for the erection of the building thereon; and hence there was no error in overruling this ground of the demurrer. 5. The plaintiff in his declaration alleged that the lien which he sought to set up had been duly recorded, and the defendant in his plea admitted this fact to be true. When the case came on to be tried, the plaintiff offered in evidence the original instrument in writing which was the [461] evidence of his claim of lien. It appeared that the instrument had never been in fact recorded. The defendant objected to its introduction in evidence, upon the ground that it had not been recorded. The objection was overruled, and a sufficient reply to the assignment of error to this ruling is to be found in the fact that by his plea the defendant had admitted that the lien was duly recorded. He made no motion to correct his plea, or to expunge from it the admission in question. So long as this admission remained standing in his plea, he was estopped to deny its truth, and hence could not insist upon the objection, however well founded it might have been in fact. The court therefore committed no error in overruling this objection. 6. It was the purpose of this court to discuss at some length the act of October 19th, 1891, and the act of December 18th, 1893, the two enactments constituting the basis of the plaintiff’s claim of lien, in order to settle as far as possible any doubt which might exist in the public mind as to the meaning of these acts construed together; but after the court had pronounced its judgment, announcing as in the 6th head-note supra its conclusion reached in the present case, the General Assembly, on December 16th, 1895, passed another act upon the same subject (see Acts 1895, p. 27), which renders at this time any elaborate discussion of the two prior acts wholly unnecessary. Judgment reversed.