Rights of assignee of security deed.

- Where one becomes owner of title conveyed by security deed and of indebtedness secured thereby, and power of sale not expressed in said deed as limited to grantee, but having been conferred upon grantee or "assigns," the owner is entitled to exercise the power to same extent as grantee. Universal Chain Theatrical Enters., Inc. v. Oldknow, 176 Ga. 492, 168 S.E. 239 (1933).

A transferee of rent note may foreclose landlord's lien by distress. Beall v. Patterson, 146 Ga. 233, 91 S.E. 71 (1916); International Agric. Corp. v. Powell, 31 Ga. App. 348, 120 S.E. 668 (1923).

How holder of mortgage note may foreclose.

- The simple endorsement of the name of the payee in a mortgage note payable to order, on the back thereof, gives the holder for value the right to foreclose in own name. Setze v. First Nat'l Bank, 140 Ga. 603, 79 S.E. 540 (1913).

No need to charge section.

- It is not error for the trial court to fail to charge the substance of O.C.G.A. § 44-14-531 in the absence of a request. First Nat'l Bank v. Vinson, 102 Ga. App. 828, 118 S.E.2d 225 (1960).

Cited in Redwine v. Frizzell, 184 Ga. 230, 190 S.E. 789 (1937).

Am. Jur. 2d.

- 6 Am. Jur. 2d, Assignments, § 50.

C.J.S.

- 6A C.J.S., Assignments, § 76.

ALR.

- Interest subject to a homestead right in others as subject to lien of judgment or to attachment or execution, 122 A.L.R. 1150.

Law reviews.

- For note discussing the Motor Vehicle Certificate of Title Act (Ch. 40-8) and its impact, see 13 Mercer L. Rev. 258 (1961).

Editor's notes.

- In light of the similarity of the provisions, decisions under former Code 1873, § 1991; former Code 1882, § 1991; former Civil Code 1895, § 2816; former Civil Code 1910, § 3366; former Code 1933, § 67-2401, are included in the annotations for this Code section.

Parties cannot agree to forego foreclosure at expense of other creditors.

- The law does not enable the parties to dispense with foreclosure, and settle up in their own way to the prejudice of other lienors. Stallings v. Harrold, Johnson & Co., 60 Ga. 478 (1878) (decided under former Code 1873, § 1991).

General liens for supplies Code 1910, § 3348 (see O.C.G.A. § 44-14-340) are foreclosed under this section, and when so foreclosed, are equivalent to common-law distress. Turner v. Sitton, 160 Ga. 215, 127 S.E. 847 (1925) (decided under former Code 1910, § 3366).

Liens for rent are enforced by distress and not under this section. Colclough & Co. v. Mathis, 79 Ga. 394, 4 S.E. 762 (1887) (decided under former Code 1882, § 1991).

Set-offs unrelated to transaction not allowable.

- In a proceeding under this section, matters in the nature of a set-off, not arising out of the transaction on which the lien is based should be excluded. White v. Steed, 25 Ga. App. 353, 103 S.E. 172, cert. denied, 25 Ga. App. 841 (1920) (decided under former Code 1910, § 3366).

Garnishment proceedings cannot be predicated upon the foreclosure of a lien under this section. Weston v. Beverly & McCollum, 10 Ga. App. 261, 73 S.E. 404 (1912); Lane v. Brinson, 12 Ga. App. 760, 78 S.E. 725 (1913) (decided under former Code 1910, § 3366).

Railway sale of stored property must conform to section.

- Where a railway company has a claim for storage charges only, it is a bailee for hire, and any sale by the railway company of the property stored, for the purpose of obtaining pay for its storage charges, must be in conformity with the provisions of this section. Seaboard A.L. Ry. v. Roberds, 43 Ga. App. 558, 159 S.E. 742 (1931) (decided under former Code 1910, § 3366).

When corporation cannot execute replevy bond in laborer's lien foreclosure.

- A corporation has no legal authority to execute a replevy bond in a laborer's lien foreclosure under this section brought against the principal on the bond, where such a contract of suretyship is not authorized by the corporate charter and the foreclosure does not concern the rights or business of the corporation. Hill v. Daniel, 52 Ga. App. 427, 183 S.E. 662 (1936) (decided under former Code 1933, § 67-2401).

Landlord's lien for supplies supercedes unforeclosed laborer's lien.

- In contest between unforeclosed laborer's lien and a duly foreclosed landlord's lien for supplies, the latter is entitled to payment in full, without regard to rank of the respective liens. In re Empire Granite Co., 42 F. Supp. 450 (M.D. Ga. 1942) (decided under former Code 1933, § 67-2401).

Laborer may also sue on contract at common law.

- The remedy given by this section and Code 1910, §§ 3334 and 3365 (see O.C.G.A. §§ 44-14-380,44-14-530) is not exclusive, and does not deprive a laborer of his common-law right to sue upon a contract, but is merely cumulative of that right. Jennings v. Lanham, 19 Ga. App. 79, 90 S.E. 1038 (1916) (decided under former Code 1910, § 3366).

All sawmills, whether they are in fact fixtures or not, are treated as personalty under this section. Empire Lumber Co. v. Kiser & Co., 91 Ga. 643, 17 S.E. 972 (1893) (decided under former Code 1882, § 1991).

Contractor for planting and picking cotton could assert lien.

- Based on evidence that an independent contractor was hired to plant and pick cotton - not to oversee others while they completed the contract - the contractor met the burden under O.C.G.A. § 44-14-550 of showing reasonable cause that a valid debt existed to support the contractor's special lien. Slappey v. Slappey, 296 Ga. App. 773, 676 S.E.2d 283 (2009).

Affidavit must show demand made when payment due.

- It is necessary that the affidavit of foreclosure should show affirmatively that demand for payment was made after the debt became due. Anderson v. Beard, 54 Ga. 137 (1875); Central R.R. & Banking Co. v. Sawyer, 78 Ga. 784, 3 S.E. 629 (1887) (decided under former Code 1873, § 1991; Code 1882, § 1991).

Depositary for hire must allege demand when payment due.

- In order for a depositary for hire (Civil Code 1910 §§ 3494, 3501) (see O.C.G.A. §§ 44-12-90,44-12-92,44-14-402) to foreclose his lien under this section, it is incumbent upon him to allege in the affidavit made for that purpose, among other things, that he made demand upon the depositor for payment after the amount claimed became due. Where an attempted foreclosure was made in which the affidavit omitted such averment, a sheriff's sale made thereunder was without authority of law and void. Vandalsem v. Caldwell, 33 Ga. App. 88, 125 S.E. 716 (1924), later appeal, 36 Ga. App. 683, 137 S.E. 906 (1927) (decided under former Code 1910, § 3366).

It is sufficient for affidavit to allege payment demanded from a company general superintendent. Hobbs v. Georgia Lumber Co., 74 Ga. 371 (1884) (decided under former Code 1882, § 1991).

Laborer must prove demand and refusal.

- In an action to foreclose a laborer's lien the plaintiff laborer must allege and prove a demand upon the defendant employer for the amount claimed and a refusal by the defendant employer to pay. Brown v. Phillips, 90 Ga. App. 661, 83 S.E.2d 846 (1954) (decided under former Code 1933, § 67-2401).

Demand must be averred, proved or excused.

- This section requires that the requisite demand must be both averred in the foreclosure affidavit and proved, or excused as provided therein. Cummings v. Adams, 63 Ga. App. 74, 10 S.E.2d 106 (1940) (decided under former Code 1933, § 3366).

Sharecropper cannot win without proof of demand when counter affidavit denies demand.

- Where a sharecropper seeks to foreclose his laborer's lien and the foreclosure affidavit avers that a timely demand was made on the landlord by the sharecropper for the money alleged to be due the latter, and the counteraffidavit denies that such demand was made, and a demand is not proved, excused, or waived, the sharecropper fails to make out his case and the direction of a verdict for the landlord is not error. Cummings v. Adams, 63 Ga. App. 74, 10 S.E.2d 106 (1940) (decided under former Code 1933, § 67-2401).

No demand is necessary where the tenant is out of the state. Hopkins v. Pedrick, 75 Ga. 706 (1885) (decided under former Code 1882, § 1991).

Tenant removing crops.

- Since a landlord's special lien on crops for supplies furnished may be foreclosed before the debt is due, if the tenant is removing or seeking to remove crops from the premises, a demand for payment is not, in such a case, an essential prerequisite to the right to foreclose. Vaughn v. Strickland, 108 Ga. 659, 34 S.E. 192 (1899) (decided under former Code 1895, § 2816).

Effect of affidavit omitting demand and refusal when member of foreclosing firm buys item.

- When the affidavit upon which a mechanic's lien on personalty is foreclosed, fails to state that demand for payment of the debt is made on the owner of the property, and payment refused, and the member of the firm of mechanics who makes such affidavit becomes the purchaser, that person obtains no title. Erskine v. Wiggins, 58 Ga. 186 (1877) (decided under former Code 1873, § 1991).

Where no evidence of demand, judgment cannot be for lien.

- Where an attempt is made to foreclose a laborer's lien, a demand must be alleged, and where, on the trial of a counteraffidavit to such foreclosure, the evidence shows that no such demand was made, the judgment of the trial court finding in favor of the lien is error. Newman v. Cash, 47 Ga. App. 39, 169 S.E. 520 (1933) (decided under former Code 1910, § 3366).

Procedure for enforcing laborer's lien.

- The laborer may enforce such lien on personal property by filing an affidavit in the proper court in the county of the residence of the employer or in the county where such property of the employer is located, setting forth the essential facts necessary to constitute such lien, whereupon an execution shall issue instanter, the same being final process, unless and until arrested or controverted by a proper counter affidavit. Harris v. Houston, 51 Ga. App. 116, 179 S.E. 645 (1935) (decided under Code 1933, § 67-2401).

Sale void if affidavit void.

- If the affidavit is void, as where no oath was in fact taken, a sale made in pursuance thereof is void. Bryan v. Madison Supply Co., 135 Ga. 171, 68 S.E. 1106 (1910); Bertha Mineral Co. v. Buie, 27 Ga. App. 660, 109 S.E. 539 (1921), later appeal, 30 Ga. App. 369, 118 S.E. 75 (1923) (decided under former Code 1895, § 2816; Code 1910, § 3366).

For sufficiency of affidavit, see Moody v. Travis, 76 Ga. 832 (1886) (decided under former Code 1882, § 1991).

Agent may make affidavit for client contesting the amount or justice of lienholder's claim in foreclosure on personalty. Jackson v. Fincher, 128 Ga. App. 148, 195 S.E.2d 762 (1973) (decided under former Code 1933, § 67-2401).

Execution issued in favor of lienholder, although agent files affidavit.

- Although the affidavit in proceedings under this section is made by the agent of the lienholder, the execution should issue in favor of the lienholder. Mullins v. Dowling, 20 Ga. App. 138, 92 S.E. 763 (1917) (decided under former Code 1910, § 3366).

Affidavits handed to clerk are properly filed.

- Where affidavits to foreclose laborer's liens are made and handed to the clerk for the clerk to issue executions thereon, they are in fact filed in the clerk's office. Floyd v. Chess-Carley Co., 76 Ga. 752 (1886) (decided under former Code 1882, § 1991).

City court may foreclose sawmill lien where amount not exceed county jurisdiction.

- A city court has jurisdiction to foreclose a lien in favor of the proprietor of a sawmill on the product of the mill, for work done on material furnished by another, at least where the principal of the amount claimed does not exceed the jurisdiction of the county court. Chambliss v. Hawkins, 123 Ga. 361, 51 S.E. 337 (1905) (decided under Code 1895, § 2816).

County court may issue execution.

- The statutory provisions that the judges of the county courts shall have jurisdiction to foreclose mortgages on personal property and liens includes power of the judge to take the statutory affidavit and issue execution as provided in this section. Gunn v. J.M. Johnson & Co., 154 Ga. 568, 114 S.E. 709 (1922) (decided under former Code 1910, § 3366).

For case involving jurisdiction of justice of the peace.

- See Gray v. Joiner, 127 Ga. 544, 56 S.E. 752 (1907) (decided under former Code 1895, § 2816).

Affidavit invalid where filed before justice of peace without oath.

- Where, in an effort to foreclose, the person asserting the lien procures a justice of the peace to "write out the lien and the affidavit," and then "signed," and the justice of the peace "attests" the signature without the administration of any oath, the paper so executed does not constitute a valid affidavit. Bryan v. Madison Supply Co., 135 Ga. 171, 68 S.E. 1106 (1910) (decided under former Code 1895, § 2816).

Completion of contract need not be alleged or proved where lienee has waived or prevented completion. Haralson v. Speer, 1 Ga. App. 573, 58 S.E. 142 (1907) (decided under former Code 1895, § 2816).

Laborer need not describe employer's property perfectly in general lien.

- That a laborer desires to claim a general lien on all the property of the employer and is unable to describe such property specifically, does not prevent the laborer from asserting a lien and enforcing it as such. The laborer need not do an impossible thing. Love v. Cox, 68 Ga. 269 (1881) (decided under former Code 1873, § 1991).

The affidavit, under this section, to foreclose a general laborer's lien, need not specify any particular items or articles of property. Allred v. Haile, 84 Ga. 570, 10 S.E. 1095 (1890) (decided under former Code 1882, § 1991).

Laborer with execution need not prove debt or amount in trial of claim.

- An execution issued upon the foreclosure of a laborer's lien is, as to a claimant of property levied on thereunder, final process, and upon the trial of a claim case arising upon the levy of such an execution, it is not necessary for the laborer to prove either the amount of the debt, or the existence of the laborer's lien. Allen v. Middleton, 99 Ga. 758, 27 S.E. 752 (1896) (decided under former Code 1882, § 1991).

An affidavit commanding the officer to levy on immature crops is not void, nor does a return thereon showing an attempt to levy on such crops render a levy on other property at the same time void. Faircloth v. Webb, 125 Ga. 230, 53 S.E. 592 (1906) (decided under former Code 1895, § 2816).

Property claimed in landlord's supply lien is implicitly crops grown during year supplies given.

- It is not necessary, in an affidavit to foreclose a landlord's lien for supplies furnished, to set out the property on which the lien is claimed. Execution is to be issued against the property subject to the lien; and the law specifies that the property so subject is the crops raised during the year when the supplies were furnished. Ware v. Blalock, 72 Ga. 804 (1884) (decided under former Code 1882, § 1991).

When claimant cannot be made defendant in fi. fa. by amendment.

- Although the proceeding before the filing of a counter-affidavit and the giving of a replevy bond may, in effect, be a proceeding in rem, it is not such a proceeding as may be amended by making a claimant to the property levied on, a defendant is fi. fa. unless some equitable reason be shown therefor. Farrar v. Joyce, 60 Ga. App. 675, 4 S.E.2d 708 (1939) (decided under former Code 1933, § 67-2401).

Special lien cannot substitute landowner for contractor as defendant, by amendment.

- Laborer's special lien foreclosed against A, and levied on property alleged to be the property of A, to which property B files a claim, cannot be amended by alleging that B is the owner of the property, that the work for which the lien arose was done for B's benefit, and that B knowingly accepted such benefit, as such an amendment in effect substitutes B (of whom no demand for payment had been made within 12 months from the date the debt became due) for A as a party defendant, and this may not be done unless there is an equitable reason therefor. Farrar v. Joyce, 60 Ga. App. 675, 4 S.E.2d 708 (1939) (decided under former Code 1933, § 67-2401).

Counteraffidavit may be interposed anytime before sale.

- A counteraffidavit to the foreclosure of a laborer's lien may be interposed at any time before the sale of the defendant-owner's there being no law requiring its interposition at the first or any other term after the foreclosure. Harris v. Houston, 51 Ga. App. 116, 179 S.E. 645 (1935) (decided under former Code 1910, § 3366).

A counteraffidavit to the foreclosure of a laborer's lien may be interposed at any time before the sale of the defendant's property. Bowman v. Quick, 106 Ga. App. 213, 126 S.E.2d 536 (1962) (decided under former Code 1933, § 67-2401).

Oath in counteraffidavit that affiant is lienee's agent unnecessary.

- Only defensive matter to a foreclosure of a lien on personalty being required in a counteraffidavit filed by the lienee under this section, such an affidavit, when made by the lienee's agent, as provided in O.C.G.A. § 10-6-80, need not contain a sworn averment that the affiant is agent for the lienee. It is sufficient if such affidavit is in fact made by the lienee's duly authorized agent, and where the affidavit purports on its face to be executed by such agent, the agency is presumed and the affidavit is prima facie valid. Georgia Lumber Co. v. Thompson, 34 Ga. App. 281, 129 S.E. 303 (1925) (decided under former Code 1910, § 3366).

Counteraffidavit must be filed with levying officer to permit trial.

- This section contemplates that the counteraffidavit to the foreclosure of a laborer's lien should be filed with the levying officer as a condition precedent to returning the case to court for trial. Harvey v. Johnson, 28 Ga. App. 287, 111 S.E. 576 (1922) (decided under former Code 1910, § 3366).

Filing counteraffidavit with court and notification of levying officer is sufficient.

- The filing of the counteraffidavit with the court which issued the execution, and immediate notification of the levying officer is substantial compliance with any requirement, if any, that it be filed with the levying officer. Bellington v. Bryant, 45 Ga. App. 771, 165 S.E. 890 (1932) (decided under former Code 1910, § 3366).

Superintendent of Banks (now Commissioner of Banking and Finance) as receiver of creditor may contest foreclosure of a lien under this section. Bennett v. Green, 156 Ga. 572, 119 S.E. 620 (1923) (decided under former Code 1910, § 3366).

Requirements for second counteraffidavit.

- A second counteraffidavit to an execution based on the foreclosure of a factor's lien cannot be filed without an allegation that the facts therein set forth were unknown to the defendant at the time the first was filed. Story v. Flournoy, McGehee & Co., 55 Ga. 56 (1875) (decided under former Code 1873, § 1991).

No amendment of issue in second counteraffidavit after return to court.

- A counteraffidavit, which was the foundation of a legal proceeding, cannot be amended after it has been returned into court, either by the filing of a new affidavit or otherwise, so as to change the issue thereby presented. Jackson, Judge, dissenting. Story v. Flournoy, McGehee & Co., 55 Ga. 56 (1875) (decided under former Code 1873, § 1991).

Necessity for replevy bond in landlord's supply lien.

- In a proceeding under this section to foreclose a landlord's lien for supplies, a general judgment in the landlord's favor cannot be rendered unless a replevy bond is filed. Argo v. Fields, 112 Ga. 677, 37 S.E. 995 (1901) (decided under former Code 1895, § 2816).

Replevy bond without counteraffidavit insufficient to convert proceeding into mesne process.

- The giving of a replevy bond will not convert foreclosure proceedings under this section into mesne process. There must be a counteraffidavit to do this. Frost Motor Co. v. Pierce, 72 Ga. App. 447, 33 S.E.2d 910 (1945) (decided under former Code 1933, § 67-2401).

Counteraffidavit to laborer's lien converts proceeding into mesne process.

- Upon the interposition of an affidavit by an employer, denying that the laborer is due the amount claimed or denying the laborer's right to the lien claimed, the proceeding is converted into mesne process, and the issue thus formed shall be returned to the proper court for disposition as other causes. Harris v. Houston, 51 Ga. App. 116, 179 S.E. 645 (1935) (decided under Code 1933, § 67-2401).

The filing of a counteraffidavit to the foreclosure of a laborer's lien converts the proceedings into mesne process. Law v. Hodges, 53 Ga. App. 319, 185 S.E. 584 (1936) (decided under former Code 1933, § 67-2401).

Effects of omission of counteraffidavit.

- Where a laborer's lien has been foreclosed, the execution issued thereon operates as final process. The purpose of the counteraffidavit is to convert this final process into mesne process and raise an issue which must then be passed upon by the proper tribunal. But until there is such an affidavit there is no case, nothing to be returned to a court, no pleading to be amended, and no issue to be tried. Kennedy v. Miller, 179 Ga. 234, 175 S.E. 588, answer conformed to, 49 Ga. App. 505, 176 S.E. 102 (1934) (decided under former Code 1910, § 3366).

Foreclosure of landlord's lien is final unless an issuable counterclaim is filed, which must either deny the existence of the lien or show that the amount claimed is too large. Boyce v. Day, 3 Ga. App. 275, 59 S.E. 930 (1907) (decided under former Code 1895, § 2816).

Execution final unless arrested by counteraffidavit.

- An execution issued on the foreclosure of a mechanic's lien, under this section, is final process until and unless arrested by a valid counteraffidavit. Frost Motor Co. v. Pierce, 72 Ga. App. 447, 33 S.E.2d 910 (1945) (decided under former Code 1933, § 67-2401).

Execution issued on affidavit of foreclosure against defendant in fi. fa. becomes a final process unless and until defendant files a counteraffidavit; a general judgment in such a case cannot be rendered unless a replevy bond is given. Farrar v. Joyce, 60 Ga. App. 675, 4 S.E.2d 708 (1939) (decided under former Code 1933, § 67-2401).

If no counteraffidavit, plaintiff may enter judgment on replevy bond.

- Foreclosure proceedings under this section are final process and can only be converted into mesne process by the filing of the counteraffidavit. To replevy the property levied on is not sufficient, and in the absence of the counteraffidavit the plaintiff may enter judgment on the replevy bond. Giddens v. Gaskins, 7 Ga. App. 221, 66 S.E. 560 (1909); Wilson v. Griffin, 22 Ga. App. 451, 96 S.E. 395 (1918); Harvey v. Johnson, 28 Ga. App. 287, 111 S.E. 576 (1922) (decided under former Code 1895, § 2816; Code 1910, § 3366).

Effect of dismissal of counteraffidavit.

- When a counteraffidavit to the foreclosure of a lien has been dismissed on motion of the lienor, the case passes out of the jurisdiction of the court, and the process is remanded to the levying officer by operation of law. Murphey v. McGough, 105 Ga. 816, 31 S.E. 757 (1898) (decided under former Code 1895, § 2816).

Unforeclosed laborer's lien cannot participate in money found brought under other process.

- A laborer's lien which has not been foreclosed cannot participate in a fund brought into court under other process which is subject of controversy in a money-rule case. In re Empire Granite Co., 42 F. Supp. 450 (M.D. Ga. 1942) (decided under former Code 1933, § 67-2401).

Limitations on levying officer after counteraffidavit filed.

- There is no law which authorizes the levying officer to advertise property for sale after a counteraffidavit has been filed, nor is the officer authorized to decide the validity or invalidity of the counteraffidavit; nor is there any law authorizing an ex parte order for the sale of property, without notice to property owner. Jackson v. Fincher, 128 Ga. App. 148, 195 S.E.2d 762 (1973) (decided under former Code 1933, § 67-2401).

Counteraffidavit which neither denies or admits debt subject to dismissal.

- A counteraffidavit interposed to the foreclosure of a lien, which in terms neither admits nor denies the indebtedness set forth in the affidavit of foreclosure, does not make an issue which can be tried, and should be dismissed on motion. Murphey v. McGough, 105 Ga. 816, 31 S.E. 757 (1898) (decided under former Code 1895, § 2816).

Counteraffidavit which admits, but does not tender, lesser amount due is nullity.

- A counteraffidavit to the foreclosure of a laborer's lien which admits that an amount less than the amount claimed in the foreclosure is due and which fails to tender into court the amount admitted due is subject to dismissal and is, therefore, a nullity and no proper counteraffidavit. Bowman v. Quick, 106 Ga. App. 213, 126 S.E.2d 536 (1962) (decided under former Code 1933, § 67-2401).

A counteraffidavit which does not deny the plaintiff's right to the lien, but simply denies that defendant is indebted in the sum sued for, is insufficient. Boyce v. Day, 3 Ga. App. 275, 59 S.E. 930 (1907); Misenheimer v. Gainey, 11 Ga. App. 509, 75 S.E. 844 (1912) (decided under former Code 1895, § 2816; Code 1910, § 3366).

No motion to dismiss where counteraffidavit not filed.

- Where no counteraffidavit has been filed as provided by law, there is no case in court to be tried, and a demurrer (now motion to dismiss) to the affidavit to foreclose a laborer's lien is properly overruled. Harvey v. Johnson, 28 Ga. App. 287, 111 S.E. 576 (1922) (decided under former Code 1910, § 3366).

Owner who makes no counteraffidavit cannot bring trover after sale.

- Where a mechanic has asserted a lien on personal property for repairs, and has enforced payment thereof by foreclosure proceedings under this section, and the property has been seized and sold by the sheriff under the foreclosure proceedings, and the owner has failed to contest the right to the lien by making counteraffidavit as provided by paragraph (3), the owner cannot bring trover against the mechanic for the recovery of the property on the ground that the sale under the foreclosure proceedings, the mechanic still retaining possession of the property, amounted to a conversion thereof. Tow v. Forrester, 122 Ga. App. 718, 178 S.E.2d 692 (1970) (decided under former Code 1933, § 67-2401).

When issue triable.

- The issue raised by the filing of an affidavit of a contesting creditor under this section is triable at the term of court succeeding the filing of the contesting affidavit. Martin v. Nichols, 121 Ga. 506, 49 S.E. 613 (1904) (decided under former Code 1895, § 2816).

Pendency of foreclosure of laborer's lien is not bar to action on account for the same debt, since, even where the lien is contested and the property replevied, no general judgment can be rendered in the foreclosure proceedings. In such a case, the lien foreclosure is not converted into a proceeding in personam by the filing of a replevy bond; the actions are entirely different and each involves a different kind of judgment. McKellar v. Childs, 95 Ga. App. 237, 97 S.E.2d 616 (1957) (decided under former Code 1933, § 67-2401).

Equitable plea prevents jury trial.

- Where a defendant lienee in a proceeding under this section files an equitable plea praying a general accounting the proceeding becomes an equitable one and the defendant lienee is not entitled to a jury trial. Mackenzie v. Flannery & Co., 90 Ga. 590, 16 S.E. 710 (1892) (decided under former Code 1882, § 1991).

Lienholder may present case to jury despite debtor's absence.

- A counteraffidavit under this section is not in the nature of an affidavit of illegality, and when debtor does not appear at the trial, it is not proper for the trial judge to dismiss the affidavit, but lienholder should be allowed to make out his case before the jury. Law v. Hodges, 53 Ga. App. 319, 185 S.E. 584 (1936) (decided under former Code 1933, § 67-2401).

Sawmill owner must prove substantial compliance with contract to recover for services.

- The proprietor of a sawmill who institutes a proceeding to foreclose a lien on material furnished by another cannot, upon a failure to prove a substantial compliance with the contract, recover a verdict in that proceeding for the value of the proprietor's services. Hawkins v. Chambliss, 116 Ga. 813, 43 S.E. 55 (1902) (decided under former Code 1895, § 2816).

No general judgment where property seized is not replevied.

- Where, upon the foreclosure of a laborer's general lien as provided in this section, the property seized is not replevied, no general judgment thereon can be rendered, even though a counteraffidavit disputing the correctness of the lienor's claim is filed by the lienee. Only a judgment establishing the lien upon the property seized can be legally rendered. Downs v. Bedford, 39 Ga. App. 155, 146 S.E. 514 (1929) (decided under former Code 1910, § 3366).

When dismissal of affidavit of illegality justified.

- Upon the trial of an issue formed by the filing of an affidavit of illegality to the foreclosure of a retention-of-title, or conditional-sale contract, where it appears from the evidence that the lienee did not tender to the sheriff the amount appearing to be due without contest and not denied in the affidavit, it is not error for the court to dismiss the affidavit of illegality upon motion of the foreclosing party. Carter v. Commercial Credit Co., 58 Ga. App. 470, 198 S.E. 792 (1938) (decided under former Code 1933, § 67-2401).

When issue resolved for creditor, only special judgment permitted.

- When an issue made by the debtor in resistance to a summary execution sued out to enforce a lien upon personal property, is found in favor of the creditor, the latter is not entitled to a general judgment, but only to a special judgment declaring the existence and amount of the lien, and providing for its enforcement against the specific property; and this is so, whether the property has been replevied or not. Triest v. J.G. Watts & Bro., 58 Ga. 73 (1877); Argo v. Fields, 112 Ga. 677, 37 S.E. 995 (1901) (decided under former Code 1895, § 2816).

Court should state necessity of full hearing.

- In light of the difficulty in ascertaining the line between the "probable cause hearing" contemplated in O.C.G.A. § 44-14-550(3) and (4) and the "full hearing" provided in O.C.G.A. § 44-14-550(5), the trial court should make a formal statement regarding the necessity of holding a full hearing. Chambless Ford Tractor, Inc. v. McGlaun Farms, Inc., 169 Ga. App. 672, 314 S.E.2d 689 (1984).

Validity of lien to be determined at probable cause hearing.

- As O.C.G.A. § 44-14-550 contemplated that at the initial probable cause hearing, the trial court would inquire as to whether the plaintiff had put forth facts necessary to constitute a laborer's lien and amount due, the trial court did not err in reviewing the facts of the case in order to determine whether there was probable cause to believe a laborer could validly assert a lien against a farmer's crop for the debt under O.C.G.A. § 44-14-381. Slappey v. Slappey, 296 Ga. App. 773, 676 S.E.2d 283 (2009).

Ten-day limit on foreclosure.

- Because the client failed to establish that the attorney had constructive possession of funds at the time of the client's demand that the attorney withdraw the lien, the trial court erred in holding the attorney to the ten-day limit on foreclosure under O.C.G.A. § 44-14-550(1). Autrey v. Baker, 228 Ga. App. 396, 492 S.E.2d 261 (1997).

Nature of 12-month requirement.

- Requirement of action within 12 months is not a limitation, but a statutory condition of the existence of the lien which must be complied with. Birmingham Trust & Sav. Co. v. Atlanta, B. & Atl. Ry., 287 F. 561 (N.D. Ga. 1923) (decided under former Code 1910, § 3366).

Failure to show demand within 12 months renders process voidable.

- On a proceeding to foreclose a lien on personalty, a failure to show a demand within 12 months after the claim falls due does not make the process a nullity, but renders it voidable. Gladden v. Cobb, 73 Ga. 235, 6 S.E. 161 (1884) (decided under former Code 1882, § 1991).

One-year limitation not applicable to claim for rent.

- The limitation of one year in this section does not apply to the prosecution and enforcement by distress warrant of a special or general claim or demand by a landlord for rent. Jones v. Blackwelder, 16 Ga. App. 345, 85 S.E. 356 (1915) (decided under former Code 1910, § 3366).

Construction with O.C.G.A. § 15-19-15. - Plaintiffs asserted an attorneys' fee lien and came into possession of several checks made jointly payable to plaintiffs and defendants. The defendants made written demand for those checks but plaintiffs retained possession without instituting foreclosure proceedings within ten days of holding personal property belonging to the defendant and thereby failed to comply with the explicit terms of O.C.G.A. § 15-19-15; thus, forfeiture and cancellation of the lien was proper. Ellis, Funk, Goldberg, Labovitz & Dockson v. Kleinberger, 235 Ga. App. 360, 509 S.E.2d 660 (1998).

Editor's notes.

- In light of the similarity of the provisions, opinions under former Code 1933, § 67-2401, are included in the annotations for this Code section.

Sales agreement allowing car repossessor to claim contents void.

- A clause in a conditional sales financing agreement which provides that the repossessing party may take not only the car but also whatever personal effects are in it subject to their being held for return on demand, is legally unconscionable; the taking of such personal belongings would be entirely beyond the scope of any law. 1967 Op. Att'y Gen. No. 67-363.

Am. Jur. 2d.

- 51 Am. Jur. 2d, Liens, § 79 et seq.

C.J.S.

- 53 C.J.S., Liens, § 29 et seq.

ALR.

- Right of buyer of chattels to lien upon the property where he rescinds the contract, 7 A.L.R. 993.

Liability of purchaser of personal property for taxes assessed against former owner, 41 A.L.R. 187.

Right of conditional seller of chattels attached to realty to claim lien on the realty, 58 A.L.R. 1121.

Attachment as affected by release or modification of lien to which property was subject when attachment was levied, 128 A.L.R. 1392.

Recovery of damages in replevin for usable value of property detained, by successful party having only security interest as conditional vendor, chattel mortgagee, or the like, 33 A.L.R.2d 774.

Bankruptcy court's injunction against mortgage or lien enforcement proceedings commenced, before bankruptcy, in another court, 40 A.L.R.2d 663.

Demand for or submission to arbitration as affecting enforcement of mechanic's lien, 73 A.L.R.3d 1042.