Barnes v. Banks ( 1922 )

Fish, C. J.

A bank sued A and B as makers, and C and D as indorsers on several promissory notes given by A and B to C and D for the balance of the purchase-price of certain machinery. The payees in the notes, O and D, indorsed them to the bank. The action was brought in the superior court of Jones county, where the petition alleged they resided. It was further alleged that one of the indorsers was a resident of Fulton county, and the other resided in DeKalb county. The makers answered, and at the trial term the case was continued as to the bank and the makers. The makers filed a “ cross-petition,” the material substance of which was to the effect, that they purchased from the indorsers certain described machinery, paid to them a part of the purchase-price, and gave them the notes sued on; that there was a breach of warranty on the part of the indorsers, in that the machinery was not as represented by the indorsers, and was not reasonably suited for the purposes intended, and that the indorsers failed to deliver it within the time specified in the agreement between the makers and indorsers, and that the makers were thereby damaged in a -specified amount, and that the machinery was nothing like as valuable as the indorsers had represented it to be; and a judgment was prayed against the indorsers for the amount of the purchase-money paid, and for damages. This “ cross-petition ” was dismissed upon motion of the indorsers, on the ground, among others, that the superior court of Jones county had no jurisdiction to entertain such an action as set out in the “ cross-petition ” against them, as neither of them resided in that county. Held, that the court did not err in dismissing the “ cross-petition.” Under the constitution an action must be brought in the county of the defendant’s residence, and neither of the indorsers, who were the defendants in the “ cross-petition,” resided in Jones county. While they could be sued there with the makers of the notes, because they were joint obligors, the makers could not maintain in that county the “ cross-petition ” against them-. Judgment affirmed.

No. 3010. December 22, 1922. F. Holmes Johnson and B. B. Blackburn, for plaintiffs in error. Joseph F. Poltle and Charles J. Haden, contra. All the Justices concur.