Chapman v. Miller , 40 Ga. App. 138 ( 1929 )

Bloodworth, J.

(After stating the foregoing facts.) The court did not err in sustaining the demurrer of the plaintiff and striking the plea of the defendants; and thereafter properly directed a verdict for the plaintiff. Section 3546 of the Civil Code of 1910 is as follows: “Any surety, guarantor, or indorser, at any time after the debt on which he is liable becomes due, may give notice in writing to the creditor, or his agent, or any person having possession or control of the obligation, to proceed to collect the same out of the principal, or any one of the several principals liable therefor; and if the creditor or holder refuses or fails to .commence an action for the space of three months after such notice (the principal being within the jurisdiction of this State), the indorser, guarantor, or surety giving the notice, as well as all subsequent indorsers and all cosureties, shall be discharged. No notice shall be considered a compliance with the requirements of this section which does not state the county of the principal’s residence.” It is not claimed that either of the indorsers gave notice in writing to the creditor to proceed to collect the debt out of the principal as provided by the foregoing section. Section 3544 of the Civil Code of 1910 provides that “a mere failure by the creditor to sue as soon as the law allows, or negligence to prosecute with vigor his legal remedies, unless for a consideration, will not release the surety.” See Hall v. Langford, 18 Ga. App. 73 (4) (88 S. E. 918). Citing this section, this court, in Jordan v. Farmers & Merchants Bank, 5 Ga. App. 244 (62 S. E. 1024), quoted with approval the following from Lumsden v. Leonard, 55 Ga. 374 (4) : “Mere non-action by the creditor will not release the surety, unless such non-action makes unproductive some collateral security, . . or is based upon a consideration paid by the principal debtor to the creditor, or he is not notified under the statute to collect the debt.” See Baumgartner v. McKinnon, 10 Ga. App. 219 (73 S. E. 519); McMillan v. Heard National Bank, 19 Ga. App. 153, 154 (91 S. E. 235).

Judgment affirmed.

Broyles, G. J., and Luke, J., concur.