Graham v. Marks & Co. , 95 Ga. 38 ( 1894 )

Simmons, Chief Justice.

It appears from the record that Mrs. Eliza J. Graham, the plaintiff in error, and one C. M. Davis, executed a joint promissoiy note, payable to M. Eoote, Jr., attorney for Brown Brothers. The note was indorsed by Eoote and by one L. E. Davis, and was negotiated to Marks & Company, and they brought suit upon it in a justice’s court against the joint makers, and against Eoote, attorney for Brown Brothers. At the appearance term, the defendant Mrs. Graham filed several pleas which it is unnecessary now to notice, and at the trial term she moved to dismiss the case on the ground that she was a joint maker with C. M. Davis and that he had not been .served. This motion was overruled; and after dismissing the pleas filed by Mrs. Graham, the court rendered judgment against her, and against M. Eoote, attorney for Brown Brothers, for the amount of the note. Mrs. Graham sued out a writ of certiorari to the superior court, and on the hearing in that court the certiorari was dismissed and the judgment of the magistrate affirmed, and to this ruling she excepted.

Where two persons execute a joint contract and are sued thereon, and one of them is not served, and it does not appear that the defendant not served is dead or beyond the jurisdiction of the court, and there is no return of non est inventus as to him, the court, upon a motion made at the proper time, should dismiss the action. Code, §§3350, 3414; Booher v. Worrill, 43 Ga. 587. There being no service as to one of the joint makers sued in this case, and the plaintiff not having shown or attempted to show that the one not served was dead or beyond the jurisdiction of the court, and there, being no return of non est inventus as to him, the court below erréd in dismissing the certiorari.

As to the indorsers, it was optional with the plaintiffs to sue either or both of them in this action, or to leave them both out of the action, if they saw proper to do so. The indorsers being simply indorsers and not joint makers, it was not necessary to join them in the action.

Judgment reversed.