Baldwin v. Shields , 134 Ga. 221 ( 1910 )

Atkinson, J.

The suit, as amended, was for the foreclosure of an .alleged materialman’s lien, to collect the price of certain material furnished to a contractor for the improvement of real estate. As amended, the petition did not seek to recover a personal judgment against either the contractor or the owner of the land. The contractor was not a party to the suit; nor was it alleged that the plaintiff had procured a judgment against the contractor. It was essential to the cause of action that a valid judgment against the contractor should previously have been obtained, or that he be proceeded against in the foreclosure suit concurrently with the owner of the land. Mauck v., Rosser, 126 Ga. 268 (55 S. E. 32). See also Pike Brothers Lumber Co. v. Mitchell, 132 Ga. 675 (64 S. E. 998). As the petition omitted allegations as to these •essential matters, it failed to set forth facts which entitled the plaintiff to a judgment of foreclosure, which was the only relief sought. It was, therefore, subject to general demurrer, and the court erred in refusing to dismiss the petition. In the brief of •counsel for the defendant in error it was conceded that the contractor was a necessary party, but it was insisted that the point was not raised in the court below. There were several grounds of demurrer, some of them being subdivided into statements of various specific reasons why the petition showed on its face that the plaintiff was not entitled to recover; but there was also a demurrer which, in substance, complained generally that the petition should be dismissed because it failed to set forth a cause of action against the defendant. There was no attempt to set forth any cause of action other-than one for a statutory foreclosure, of a materialman’s lien; and as the allegations were insufficient' to state a cause of action of that character, it was open to the general demurrer, and the question upon which the reversal is had could not be disregarded by the trial court on the ground that it was not raised.

Judgment reversed.

All the Justices concur, except Fish, C. J., absent.