O.C.G.A. § 44-14-363 (2019)

Annotations

Cross references. Liens for work done or materials furnished with regard to motor vehicles, § 40-3-54. Editor’s notes. Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that

this Act is applicable with respect to notices delivered on or after July 1, 2000. Ga. L. 2010, p. 776, § 3/HB 1147, not codified by the General Assembly, provides that the amendment of this Code section shall apply to all liens filed on or after July 1, 2010. Law reviews. For note discussing the Motor Vehicle Certificate of Title Act (Ch. 3, T. 40) and its impact, see 13 Mercer L. Rev. 258 (1961). For comment on United States v. Crittenden, 563 F.2d 678 (5th Cir. 1977), see 12 Ga. L. Rev. 692 (1977). For comment on United States v. Crittenden, 600 F.2d 478 (5th Cir. 1979), discussing the priority of a mechanic’s lien in Georgia, see 14 Ga. L. Rev. 628 (1980).

JUDICIAL DECISIONS O.C.G.A. § 44-14-363 applies to perfection of mechanic’s liens against personal property in general. Gwinnett Sales & Serv. v. Trust Co., 130 Ga. App. 31, 202 S.E.2d 255, 1973 Ga. App. LEXIS 1211 (1973). What affidavit must show. - The affidavit for the foreclosure of a mechanic’s lien under O.C.G.A. § 44-14-363 must allege facts sufficient to show that the work was done in the manufacture or repair of personal property. Cook v. Bowden, 32 Ga. App. 498, 124 S.E. 60, 1924 Ga. App. LEXIS 501 (1924). Mechanic may assert general laborer’s lien. - A mechanic who performs labor is not limited to a remedy under O.C.G.A. § 44-14-363 but may assert a

general laborer’s lien under O.C.G.A. § 44-14-380. Hilley v. Lunsford, 29 Ga. App. 398, 115 S.E. 667, 1923 Ga. App. LEXIS 29 (1923). How mechanic may enforce lien. - Whether the mechanic asserts a lien by retention of the property or by surrendering possession and recording the lien, the mechanic may enforce payment by foreclosure proceedings according to the provisions of O.C.G.A. § 44-14-550. Fitzgerald Trust Co. v. Burkhart, 12 Ga. App. 222, 77 S.E. 7, 1913 Ga. App. LEXIS 506 (1913). Mechanic may arrest by claim proceedings to levy property. - While a foreclosure of a lien is necessary before sale under it, yet where another levies on the property, it is proper for the mechanic

to arrest the proceeding by claim. Hurley & Smith v. Epps, 69 Ga. 611, 1882 Ga. LEXIS 275 (1882). Foreclosure not grounds for trover. - Where a mechanic has asserted a lien on personal property for repairs thereon and has enforced payment thereof by foreclosure proceedings, the owner cannot bring trover against the mechanic. Fitzgerald Trust Co. v. Burkhart, 12 Ga. App. 222, 77 S.E. 7, 1913 Ga. App. LEXIS 506 (1913). Holding car for payment. - Where defendant mechanic holds plaintiff’s automobile in assertion of a special lien for repairs, the mechanic’s refusal to redeliver the automobile to the plaintiff in trover upon demand, without payment of the repair bill, constitutes no conversion of the property, and plaintiff cannot maintain action in trover for its recovery. Truscott v. Garner, 92 Ga. App. 95, 88 S.E.2d 197, 1955 Ga. App. LEXIS 530 (1955). Retention is not conversion. - Where one receives possession of an automobile for the purpose of making repairs and holds the vehicle in assertion of a special lien for making such repairs, the holder’s refusal to deliver the automobile upon demand does not constitute a conversion. Boatright v. Padgett Motor Sales, Inc., 117 Ga. App. 578, 161 S.E.2d 402, 1968 Ga. App. LEXIS 1149 (1968). Where there is agreement to balance accounts from time to time, the right to hold the property is waived and the lien is lost unless a claim of lien is filed. Gearreld v. Woodruff, 13 Ga. App. 450, 79 S.E. 355, 1913 Ga. App. LEXIS 192 (1913). Where a mechanic does work on open account repairing several articles the mechanic cannot at the end of a year of such transactions record a claim of lien for all of them. Palin v. Cooke, 125 Ga. 442, 54 S.E. 90, 1906 Ga. LEXIS 187 (1906). Possession of car irrelevant where vendor title superior to mechanic’s lien. - Although the retention of the automobile is the proper method of asserting the mechanic’s lien under O.C.G.A. § 44-14-363, the allegation of possession is irrelevant where a mechanic’s lien for

repair work and material of the credit of a vendee is inferior to the vendor’s contract retaining the title, regardless of who has possession of the automobile at the time of the levy. Dixon v. GMAC, 105 Ga. App. 413, 124 S.E.2d 660, 1962 Ga. App. LEXIS 939 (1962). Legal title takes precedence over mechanic’s lien. - There is nothing contained or implied in O.C.G.A. § 44-14363 or the decisions thereunder that would indicate that a mechanic’s lien, any more than any other lien, was intended to operate, or by any possible construction could be made to operate, in such a manner as to exert priority over an outstanding and valid legal title. Manchester Motors, Inc. v. F & M Bank, 91 Ga. App. 811, 87 S.E.2d 342, 1955 Ga. App. LEXIS 870 (1955). O.C.G.A. § 44-14-363 has never at any time been construed to extend beyond mere liens, as such, and to effect a priority over a legal title in another. There is a clear distinction between a lien and a legal title. Manchester Motors, Inc. v. F & M Bank, 91 Ga. App. 811, 87 S.E.2d 342, 1955 Ga. App. LEXIS 870 (1955). Unrecorded bill of sale to secure debt uniformly superior to any lien arising by operation of law, as is the case with any mechanic’s lien. Manchester Motors, Inc. v. F & M Bank, 91 Ga. App. 811, 87 S.E.2d 342, 1955 Ga. App. LEXIS 870 (1955). Failure to record. - The mechanic’s lien of an aircraft repair company which was not recorded with the Federal Aviation Administration (FAA) was not valid, thus the security interest of a bank which was recorded with the FAA after the mechanic initiated lien foreclosure proceedings was superior. Southern Horizons Aviation v. F & M Bank, 231 Ga. App. 55, 497 S.E.2d 637, 1998 Ga. App. LEXIS 323 (1998). Perfected security interest under former O.C.G.A. § 11-9-310 superior to mechanic’s lien. - Under former O.C.G.A. § 11-9-310 (see now O.C.G.A. § 11-9-333), a perfected security interest takes priority over all liens described in O.C.G.A. § 44-14-320, including mechanic’s lien as provided for in O.C.G.A. § 4414-363. Newton Ford Tractor Co. v. JI

Case Credit Corp., 163 Ga. App. 497, 294 S.E.2d 723, 1982 Ga. App. LEXIS 2550 (1982). A bank’s security interest in the inventory of a carpet manufacturer took priority over a mechanic’s lien. Nationsbank v. Hardwick Carpets Int’l, Inc., 233 Ga. App. 894, 506 S.E.2d 174, 1998 Ga. App. LEXIS 1096 (1998). Perfected security interest under O.C.G.A. § 40-3-54 superior to mechanic’s lien. - A security interest on a vehicle which is perfected pursuant to O.C.G.A. § 40-3-54 is superior to a mechanic’s lien on a vehicle which is perfected under the provisions of O.C.G.A. § 44-14-363. Gwinnett Sales & Serv. v. Trust Co., 130 Ga. App. 31, 202 S.E.2d 255, 1973 Ga. App. LEXIS 1211 (1973). Recorded bill of sale superior to subsequently recorded mechanic’s lien. - A bill of sale properly recorded is a superior lien to a mechanic’s lien subsequently duly recorded and foreclosed. Norman v. Farmers State Bank, 90 Ga. App. 763, 84 S.E.2d 207, 1954 Ga. App. LEXIS 808 (1954). Effect of a failure to record a mortgage or bill of sale to secure debt shall be the same as is the effect of failure to record a deed of bargain and sale. This changes the prior law with reference to those securities so as to render such instruments, even though unrecorded, superior in rank to subsequent liens created by law. Manchester Motors, Inc. v. F & M Bank, 91 Ga. App. 811, 87 S.E.2d 342, 1955 Ga. App. LEXIS 870 (1955). Vendee cannot force liability on vendor who retains title. - Where a vendor retains title to personal property the vendor’s claim is superior to the lien of a mechanic who has done work at the instance of the vendee. The vendee cannot force a liability on the vendor. Baughman Auto. Co. v. Emanuel, 137 Ga. 354, 73 S.E. 511, 1912 Ga. LEXIS 18 (1912). Bill of sale to secure debt superior to all liens, absent recording act. - A bill of sale to secure debt conveys an outright legal title, as distinguished from a mortgage lien, under law, so as to place such legal title beyond the reach of any lien, statutory or otherwise, in the absence of a recording act treating such as

an equitable mortgage. Manchester Motors, Inc. v. F & M Bank, 91 Ga. App. 811, 87 S.E.2d 342, 1955 Ga. App. LEXIS 870 (1955). Removal of illegally parked cars by police creates no lien. - Where O.C.G.A. § 40-6-206 permits police officers to remove illegally parked automobiles to a garage or other place of safety, but it does not specify whether a public or private garage, nor does it state that the owner shall be liable for the costs of such removal and storage, and no specific authority is given the officers to impound the vehicle and the law is blank as to its ultimate disposition, the law does not create an agency relation between the police officers and the owner so as to create a contract for storage or towing charges, since the owner does not assent to this disposition of property, and no person authorized by law to act for the owner assents to it. Under these circumstances, no lien arises, and detention of the property by the garage against the demands of the owner amounts to a conversion. Wilkinson v. Townsend, 96 Ga. App. 179, 99 S.E.2d 539, 1957 Ga. App. LEXIS 536 (1957). Sawmill proprietors cannot have mechanic’s lien. - A lien does not arise under O.C.G.A. § 44-14-363 when the facts show that the claimants are not mechanics, but proprietors of a sawmill. Evans v. Beddingfield, 106 Ga. 755, 32 S.E. 664, 1899 Ga. LEXIS 746 (1899). No mechanic’s lien for workman hired by another. - The lien given by O.C.G.A. § 44-14-363 does not attach in favor of a workman who is hired by another to do the work. In such a case, the possession of the lien is in the master or contractor. Quillian v. Central R.R. & Banking Co., 52 Ga. 374, 1874 Ga. LEXIS 296 (1874). A firm engaged in operating a repair shop where others are employed to do expert mechanical work, and where material is furnished for the repair of carriages and automobiles, is entitled to a lien on the property manufactured or improved. Fox v. Smith, 143 Ga. 547, 85 S.E. 856, 1915 Ga. LEXIS 514 (1915). Work done by those hired. - The lien provided for in O.C.G.A. § 44-14-363 is afforded to mechanics, notwithstanding

the work employed in manufacturing or repairing the property may have been performed entirely by an employee of the mechanic. Fox v. Smith, 143 Ga. 547, 85 S.E. 856, 1915 Ga. LEXIS 514 (1915). Lien to person who controls work. - It was the intent, and it is the plain meaning of O.C.G.A. § 44-14-363 to give

the lien to the manufacturer or repairer, the individual who controls the work, has the shop, and not to the workmen. Gibbs v. Griffin, 123 Ga. App. 385, 181 S.E.2d 285, 1971 Ga. App. LEXIS 1234 (1971). For example of enforcement of lien, see Young v. Alford, 36 Ga. App. 708, 137 S.E. 914, 1927 Ga. App. LEXIS 263 (1927).

RESEARCH REFERENCES Am. Jur. 2d. 8 Am. Jur. 2d, Bailments, §§ 190 et seq., 196. 51 Am. Jur. 2d, Liens, § 19. C.J.S. 8 C.J.S., Bailments, § 80 et seq. 53 C.J.S., Liens, § 11. ALR. Validity and effect of provision in contract against mechanic’s lien, 13 A.L.R. 1065; 102 A.L.R. 356; 76 A.L.R.2d 1087. Freight charges on material as within mechanic’s lien statute giving lien for labor or material, or within contractor’s bond securing such claims, 30 A.L.R. 466. Mechanics’ lien for material specially fabricated for and adapted to building, but not used therein, 33 A.L.R. 320. Mechanic’s lien: owner’s right to deduction on account of damages sustained through contractor’s delay, 37 A.L.R. 766. Independence of contract considered with relation to the scope and construction of statutes, 43 A.L.R. 335. Character of service contemplated by statutes giving a lien or preference, in event of insolvency, to servants, employees, laborers, etc., 54 A.L.R. 567. Material or labor employed in construction of concrete forms as basis of mechanics’ lien or claim under contractors’ bond, 84 A.L.R. 460. Priority of statutory lien on automobile for storage or repairs as against the rights of purchasers, attaching creditors, or trustee in bankruptcy which arose while car was in possession of owner after accrual of storage or completion of repairs, 100 A.L.R. 80. Principal contractor as necessary party to suit to enforce mechanic’s lien of subcontractor, laborer, or materialman, 100 A.L.R. 128. Remedy available to holder of mechanic’s lien which has priority over anteced-

ent mortgage or vendor’s title or lien as regards improvement, but not as regards land, where it is impossible or impractical to remove the improvement, 107 A.L.R. 1012. Priority of lien of sales or consumers’ tax, 136 A.L.R. 1015. Time for filing notice or claim of mechanic’s lien where claimant has contracted with general contractor and later contracts directly with owner, 78 A.L.R.2d 1165. Priority between mechanics’ liens and advances made under previously executed mortgage, 80 A.L.R.2d 179. What constitutes “commencement of building or improvement” for purposes of determining accrual of mechanic’s lien, 1 A.L.R.3d 822. Sufficiency of designation of owner in notice, claim, or statement of mechanic’s lien, 48 A.L.R.3d 153. Abandonment of construction or of contract as affecting time for filing mechanics’ liens or time for giving notice to owner, 52 A.L.R.3d 797. Assertion of statutory mechanic’s or materialman’s lien against oil and gas produced or against proceeds attributable to oil and gas sold, 59 A.L.R.3d 278. Secured transactions: priorities as between previously perfected security interest and repairman’s lien on motor vehicle under Uniform Commercial Code, 69 A.L.R.3d 1162. Who is the “owner” within mechanic’s lien statute requiring notice of claim, 76 A.L.R.3d 605. Lien for towing or storage, ordered by public officer, of motor vehicle, 85 A.L.R.3d 199. Garageman’s lien for towing and storage of motor vehicle towed from private property on which vehicle was parked without permission, 85 A.L.R.3d 240.

Validity, construction, and effect of “Sunday closing” or “blue” laws - modern status, 10 A.L.R.4th 246. Loss of garageman’s lien on repaired

vehicle by owner’s use of vehicle, 74 A.L.R.4th 90. Architect’s services as within mechanics’ lien statute, 31 A.L.R.5th 664.