Weinman v. Womack

Jenkins, P. J. 1. While there can be no valid judgment of foreclosure of a materialman’s lien for material furnished to a contractor upon the real estate improved with it, in the absence of a valid judgment ' in favor of the materialman against the contractor for the price of the material, and while in such a foreclosure suit, where the contractor is not a party, unless the petition alleges that the plaintiff has a judgment against the contractor, it should be dismissed on general demurrer (Baldwin v. Shields, 134 Ga. 221, 67 S. E. 798; Holmes v. Venable, ante, 431, 109 S. E. 175), yet where, as here, an amendment setting up such fact has been allowed without objection, the plaintiff is entitled to proceed with the foreclosure of the special lien. 2. An objection to the allowance of an amendment cannot for the first time be raised in the brief of counsel in this court. Judgment affirmed. Stephens and Hill, JJ., concur.