Scarborough & Co. v. Yarborough , 13 Ga. App. 792 ( 1913 )

Russell, O. J.

1. The suit was upon a promissory note, of which the defendants were joint makers. At the appearance term one of the defendants filed a plea and the other suffered judgment against himself by default. The defendant who filed the plea was present at the rendition of the judgment against his joint obligor, but no further proceeding was had at that term of the court. At the succeeding term he orally moved to dismiss the petition as to himself, and this motion was granted. The court .did not err in sustaining the motion. The subject of the suit was a joint contract, and the rendition of the judgment against one of the joint obligors merged the entire cause of action, and bars any subsequent suit on the same contract against the other debtor.

Decided November 25, 1913.

Complaint; from city court of Fitzgerald — Judge Newbern presiding. July 6, 1913.

James A. Griffin, O. E. Elkins, for plaintiffs in error. McDonald & Grantham, L. A. Mills Jr., contra.

2. This case is distinguished by its facts from that of Merritt v. Bagwell, 70 Ga. 578, and the decision is controlled by the ruling in Almand v. Hathcock, 140 Ga. 26 (79 S. E. 345). Judgment affirmed.