Atkinson v. Shaw ( 1927 )

Broyles, C. J.

Shaw held a series of five promissory notes signed by Mrs. Elizabeth Thompson. Two of the notes had been indorsed by Atkinson. Shaw brought a joint suit against Mrs. Thompson and Atkinson, alleging that the notes were past due and unpaid, that Mrs. Thompson was liable as maker on all five of the notes, and that Atkinson was liable as surety and guarantor on the two -notes which he had indorsed by signing his name on the backs thereof, all of the notes having been executed by Mrs. Thompson on the same date and given for the purchase-money of one tract of land. Atkinson demurred to the action, upon the ground that the petition showed a misjoinder of parties defendant, and a misjoinder of causes of action. The demurrer was overruled, and Atkinson excepted.

The court properly overruled the demurrer. Shaw?s claim against Mrs. Thompson on all five of the notes and his claim against Mrs. Thompson and Atkinson on two of the notes were not “distinct and separate claims” within the meaning of section 5515 of the Civil Code of 1910, which provides that “distinct and separate claims of or against different persons can not be joined in the same action.”

Judgment affirmed.

Lulce and Bloodworlh, JJ., concur.