Dixie Management Corp. v. Hubbard

Hall, Presiding Judge. In an action to foreclose a lien for labor and materials, the plaintiff appeals from the denial of his motion for a directed verdict. The trial court certified this order for immediate review following a mistrial when the jury failed to reach a verdict. 1. The enumeration of error recites the following order of the trial court dated April 14, 1972: "Plaintiff’s motion for directed verdict having been heard and denied by me on April 10, 1972, and the jury failing to return a verdict, which resulted in a subsequent mistrial being declared on April 10, 1972. The court hereby enters this written order denying said motion for directed verdict and hereby certifies same for immediate review by direct appeal.” The appeal is maintainable. Code Ann. §6-809 (d); Housing Authority of City of Douglas v. Marbut Co., 229 Ga. 403 (191 SE2d 785). 2. The plaintiff contends that the defendant-owner failed to [402] carry the burden of showing that all the money he paid to the contractor was disbursed to those having valid claims for labor and materials which went into his property. While the trial was highly confusing, evidence was presented on this issue. The president of the contracting company testified that he had handled all disbursements of the company and that all the funds received from the defendant had been used for the payment of bills incurred in the construction of his house. The fact that he produced no business records to back up this oral testimony (he said they had been impounded by the bankruptcy court) goes only to weight and credibility. See Short & Paulk Supply Co. v. Dykes, 120 Ga. App. 639 (171 SE2d 782). Argued September 11, 1972 Decided October 3, 1972 Rehearing denied October 24, 1972. Ernest J. Nelson, Jr., Davis & Stringer, Robert H. Stringer, for appellant. Hatcher, Meyerson, Oxford & Irvin, Henry M. Hatcher, Jr., for appellee. 3. Plaintiff also contends that defendant failed to show that other suppliers were paid according to legal priority. The contention has no merit. The only payment made after this plaintiff filed its lien was to another supplier in satisfaction of a pending lawsuit. The court did not err in denying the motion for a directed verdict. Judgment affirmed. Quillian, J., concurs. Pannell, J., concurs specially.