Burson v. Shields

Hines, J.

(After stating the foregoing facts.)

The first six headnotes require no elaboration. •

As a general rule at common law, in an action against two defendants upon a joint contract, judgment can not be given against one defendant without the other. But this rule has been changed by statute in Georgia. If two or more defendants are sued upon a joint obligation, and it is made to appear on the trial that one or more are not liable and ought not to be joined in the action, the suit does not abate, but may proceed against the other defendant or defendants. Wooten v. Nall, 18 Ga. 609; Francis v. Dickel, 68 Ga. 255. So where two are sued as partners, the plaintiff may strike one of the defendants and obtain a judgment against the remaining sole defendant, provided the evidence shows a several liability on his part. Doody Co. v. Jeffcoal, 127 Ga. 301 (56 S. E. 421). So where three persons are sued as partners, and no partnership -is established, the verdict may be against one only. Austin v. Appling, 88 Ga. 54 (5) (13 S. E. 955). “So where suit was brought against a firm composed of two members, and the jury found in favor of the plaintiff against one of the partners, a reasonable construction is to be given to the finding which will not avoid it except for necessity, and in so doing the verdict will be construed as finding in favor of the other partner.” Sureties may be sued on promissory notes jointly or separately with the makers thereof. Civil Code (1910), § 3559; McMillan v. Heard National Bank, 19 Ga. App. 148 (91 S. E. 235); Johnson v. Georgia Fertilizer &c. Co., 21 Ga. App. 530 (94 S. E. 850). This is so because the makers and sureties are joint and several obligors. White v. Hart, 35 Ga. 269; Heard v. Tappan, 116 Ga. 930 (43 S. E. 375). So where a partnership as maker, and the members of the partnership as sureties, are sued jointly upon a note, and where some of the sureties file pleas and answers, but the partnership and other sureties file no pleas and answers, in consequence of which the case is marked in default as to the partnership and such sureties, the rendition of a verdict and judgment against those sureties, without a verdict and judgment against the partnership eo nomine and the sureties who filed pleas and answers, does not render such judgment void. Merritt v. Bagwell, 70 Ga. 578; Johnson v. Georgia Fertilizer &c. Co., supra.

In Norris v. Pollard, 75 Ga. 358, the principal and surety were sued jointly. The principal filed pleas under oath. Judgment was rendered against the surety before the plea of his principal had been disposed of. This court stated, but did not decide, that it was “at least doubtful whether such judgment was not void under the constitution.” This doubt was expressed upon the ground that the surety was liable for no greater amount than was found due from the principal. However, this court held that “The judgment was at least irregular.” In Campbell v. Bowen, 49 Ga. 417, the suit was against partners'jointly, and verdict was rendered against one only. This court held that under the evidence the verdict should have been rendered against both. On direct and timely exception the judgment of the lower court was reversed. In Powell v. Davis, 60 Ga. 70, a plaintiff, holding a joint judgment against two, for a valuable consideration released one of them, This court held that this release discharged the other joint defendant. In Howes v. Patterson, 76 Ga. 689, this court held that a suit against a partnership could not be turned into one against an individual, and that there was no error in refusing to allow a judgment against the individual. But the ruling in this case was questioned in Doody Co. v. Jeffcoat, supra. When a joint action is brought against the principal and surety as joint and several obligors upon a note, the plaintiff can dismiss as to the principal and proceed alone against the surety. Brooks v. Thrasher, 116 Ga. 62 (42 S. E. 473); McMillan v. Heard National Bank, supra. Besides, the parties against whom judgment was rendered, being alleged partners of the firm sued, are both principals and sureties; and therefore they are not hurt by reason of the failure of the plaintiff to take judgment against the partnership as such. The case is still apparently pending against the other partners, both as principals and sureties upon the notes sued upon. Whether judgment can still be had against them, if the defenses set out in their pleas and answers are not sustained, is not now for decision by this court.

At most, the rendition of a verdict against the defendants, against' whom default judgment had previously been rendered, was an irregularity; and such judgment can not be impeached collaterally in equity. Redwine v. Brown, 10 Ga. 311. A direct proceeding to set aside such judgment must be had. Kelsey v. Wiley, Id. 371; Dunagan v. Stadler, 101 Ga. 479 (29 S. E. 440). This is especially true after one of the defendants in such a judgment has acquiesced therein, permitted his property to be sold under such judgment without objection, and a bona fide purchaser has acquired title thereto.

Applying the rulings above, the court did not err in admitting in evidence the proceedings in the suit in which the judgment was obtained under which the plaintiff's land was sold; but did err in granting an interlocutory injunction.

Judgment reversed.

All the Justices concur.