Ricks v. Smith

Bkoyles, P. J. “There can be no valid judgment of foreclosure of a materialman’s lien for materials furnished to a contractor, upon the real estate improved with such materials, in the absence of valid judgment in personam in favor of the materialman against the contractor for the price of such materials, rendered previously in an independent suit against the contractor or concurrently in the foreclosure suit where the contractor and the owner of the land are both made - parties and duly served.” Columbian Iron Works v. Crystal Springs Bleachery Co., 145 Ga. 621 (89 S. E. 751) ; Lombard v. Trustees, 73 Ga. 322; Clayton v. Farrar Lumber Co., 119 Ga. 37 (45 S. E. 723) ; Mauck v. Rosser, 126 Ga. 268 (55 S. E. 32) ; Griffin v. Gainesville Iron Works, 144 Ca. 840 (88 S. E. 201); Atkinson v. Wingate Plumbing Co., ante, 480. 2. “The lien of a judgment rendered on an unsecured claim of a creditor, within four months prior to the filing of a bankruptcy proceeding by or against his debtor, becomes, under section 67 f of the bankrupt act of 1898, null and void if the debtor be duly adjudicated a bankrupt; and, in that event, the invalidity of such judgment lien relates back to the time the judgment was entered.” Mohr v. Mattox, 120 Ga. 962 (48 S. E. 410) ; Pike Lumber Co. v. Mitchell, 132 Ga. 675 (64 S. E. 998, 26 L. R. A. (N. S.) 409) ; Clarke v. Larramore, 188 U. S. 486 (23 Sup. Ct. 363, 47 L. ed. 555, 9 Am. Bk. R. 476). (a) In such a case the liability of the contractor is annulled, and the materialman’s lien can not thereafter be foreclosed against the property of the owner and a judgment be rendered against him. Philip Oarey Mfg. Co. v. Viaduct Place, 1 Ga. App. 707 (4) (58 S. E. 274). (h) The ruling in McKenney v. Cheney, 118 Ga. 387 (45 S. E. 433), is not in conflict with this holding. That ease, as pointed out in Mohr v. Mattox, supra, is clearly distinguished by its particular facts. '3. Under the agreed statement of facts, and the rulings in the preceding notes, the discharge of the contractor in the bankruptcy proceedings invalidated the judgment previously obtained against him, and the lien of the plaintiff could not thereafter be foreclosed against the property of the defendant and a judgment rendered against him. The court therefore did not err in rendering a judgment in favor of the defendant. Judgment affirmed. Jenkins and Bloodworth, JJ., concur. Walter DeFore, for plaintiff. J. B. Jackson, Hardeman, Jones, Park & Johnston, H. 8. Strozier, for defendant.