Bailey v. Almand

Atkinson, Justice.

Plaintiffs in error -were sued by defendants in error upon a joint promissory note. One of tliem resided in DeKalb county; the other in Gwinnett. Two summonses were issued, returnable to different terms of the same court; and when the case came on to be heard, they made, a motion to dismiss the suit because it was not properly brought. The motion was overruled, and upon the trial judgment was rendered in favor of the plaintiffs. An appeal was taken to a jury in the magistrate’s court, and when the appeal came on to be tried, the motion to dismiss was renewed, and again overruled. Upon the trial of the appeal a verdict was rendered in favor of the plaintiffs, and the defendants sued out a writ of certiorari, alleging error upon the refusal to dismiss, and complaining of other errors alleged to have been committed on the trial. The superior court overruled the certiorari, and to that judgment defendants excepted.

In dealing with this case, we do not deem it necessary to pass upon any question, other than that involved in the motion to dismiss. According to the record in this case, the suit was upon a joint undertaking of defendants. It was necessary to the maintenance of such an action that both of them be made parties defendant, or, this not being done, the plaintiffs should allege some reason, sufficient in law, why they were not jointly sued. No such reason appears in the record, and the suit was therefore improperly brought. There were two suits against the defendants severally, brought in the same court, but to different terms. Neither of the actions can be upheld; nor are the defendants concluded upon their motion to dismiss, because of the fact that, after it was overruled, they pleaded tq the merits, and proceeded with the trial of the case. Cox v. Potts, 67 Ga. 521. We conclude, therefore, that the magistrate erred in refusing to dismiss the suit, and that the judge of the superior court erred in refusing to sustain the certiorari.

Judgment reversed.