Whitley Construction Co. v. Carlyle Real Estate Ltd.-72 Partnership

On Motion for Rehearing.

Appellant points out the dilemma confronting the materialman who has not filed suit against the landowner (in rem) within the 12-month period because he has filed suit against the contractor but for apparent good reason has not been able to obtain a judgment. Yet under Atkinson v. Wingate Plumbing Co., 20 Ga. App. 480 (93 SE 122), and others, when the landowner and contractor live in different counties and cannot be joined as defendants in one county the materialman is barred from bringing suit against the landowner until he has judgment in a prior action against the…