Cook v. Smith , 39 Ga. 335 ( 1869 )

McCay, J.

The only point made in this case is that it was error in the Court to dissolve the injunction on the answer of F. P. Smith alone, and before the other defendant answered.

The defendant who failed to answer was the principal defendant. He it was who was charged with the fraud. F. P. Smith is alleged to be a mere instrument. In such cases the rule is imperative, that at least the principal defendant must answer. Daniel’s Chan. Practice, 1823, and note with authorities. The general rule is that all the defendants must answer, (Daniel’s Chan. Practice, 1823,) unless the parties be some of them merely formal or inaccessible.

Here the principal defendant has failed to answer. We think the Court ought to have required the other answer. These men were brothers, and the record shows that all the truth is not set forth.

Judgment reversed.