Watkins Co. v. Seawright

Broyles, C. J.

“The provision of the Civil Code (1910), § 3546, giving a surety the right by written notice to require his creditor to proceed to collect the debt out of the principal, and declaring that if the creditor, after receiving such notice, fails to bring suit against the principal within three months thereof (the principal being within the jurisdiction of the State), the surety shall be discharged, is applicable in a case where the contract sued upon is not a Georgia contract, but a Minnesota contract. Sally v. Bank of Union, 150 Ga. 281 (2) (103 S. E. 460); s. c. 25 Ga. App. 509 (103 S. E. 798).” Watkins Co. v. Seawright, 168 Ga. 750 (149 S. E. 45).

“The defendant sureties were not discharged because of the creditor’s failure to bring another suit against the principal within three months after the notice given him by the sureties, under the facts stated in the second question propounded by the Court of Appeals. It appears from the question that the creditor had already pending, prior to the receipt of the notice to sue, a suit against the principal, and mere failure to secure service as evidenced by the return of the sheriff would not be ground for the abatement of this action. Where a creditor brings suit against the sureties on a contract, and the sureties give the statutory notice to the creditor to proceed to collect the debt out of the principal, and where upon the trial the creditor admits his failure to sue the principal within three months after receiving such notice, but shows that he did file suit against the principal in the county of the residence of the principal after the debt was due, but before he received the notice from the sureties, and before he brought suit against them, and that the sheriff of Fulton county (the county of the residence of the principal) made an entry on the petition that the principal was not to be found in Fulton county, the filing of another suit ivas unnecessary, as the law never requires the doing of a vain thing.”

The plaintiff, in the first paragraph of its petition, alleged that it was “a corporation duly organized and existing, pursuant to the laws of the State of Minnesota, with its office and principal place of business in the City of Winona in said State, and with power under its charter to contract and be contracted with, to sue and be sued, in its corporate name and capacity, to wit: The J. E. Watkins Company.” In the defendants’ plea the only reference to that paragraph of the petition was as follows: “Defendants deny paragraph one as alleged.” That denial was insufficient to make an issue as to the incorporation of the plaintiff company. “The existence of a corporation can only be denied by a plea of nul tiel corporation.” Wilson v. Sprague Machine Co., 55 Ga. 672-3; Bass v. African &c. Church, 155 Ga. 57 (9) (116 S. E. 816).

Where there is a conflict between a special ground of a motion for a new trial and the brief of the evidence, the latter will prevail. See, in this connection, Harris v. Vallee, 29 Ga. App. 769 (9) (116 S. E. 642). Grooms v. Grooms, 141 Ga. 478 (3) (81 S. E. 210); James v. Cooledge, 129 Ga. 860 (4) (60 S. E. 182); Georgian Co. v. Kinney, 19 Ga. App. 732 (3) (92 S. E. 31). In the instant case there -is a conflict between a ground of the motion for a new trial and the brief of the evidence as to who made the entry on the plaintiff’s petition' (when it filed suit against the principal in Fulton County) that the principal debtor could not be found. The ground of the motion shows that the entry was made by “W. T. Tumlinson,” while the brief of evidence shows the following: “Plaintiff introduced original suit with entry thereon, filed in the Municipal Court of the City of Atlanta, to show that the plaintiff had used diligence [in] bringing action against the principal; portions of said suit introduced being as follows:

'“Defendant, C. L. Garrison, not to be found in Fulton county. W. J. Lowery, Sheriff.”

Under the above-stated ruling this court must hold that the true entry is the one shown by the brief of the evidence. This is so notwithstanding that this court will take judicial cognizance of the fact that the name of the sheriff of Fulton county is J. I. Lowry, and not '“W. J. Lowery.” The documentary evidence showing the sheriff’s entry was admitted without objection, and the brief of the evidence was approved by counsel for both parties and by the court. Furthermore, the names “Lowery” and “Lowry” are idem sonans, and in such a case -the only issue is identity of person, not of name. Lovett v. State, 9 Ga. App. 232 (70 S. E. 989), and cit. Nor is our ruling affected by the fact that the initials of sheriff Lowry as given in the transcript of the record are not his true initials. The only question is, was the entry made by the sheriff of Fulton county? It is far more reasonable to conclude that in transcribing the record an error was made in the sheriff’s initials than to assume that some person other than the sheriff made the entry and falsely and criminally signed his name thereto as sheriff. Nor can this court hold as a matter of law that service by the sheriff of Fulton county of process issuing from the municipal court of Atlanta is void process.

The first and second divisions of this opinion are the answer of the Supreme Court to certain questions certified by this court. 168 Ga. 750 (supra). Under the rulings thereof and the further rulings stated above, the verdict directed by the trial court was contrary to law and the evidence, and the refusal to grant a new trial was error.

Judgment reversed.

Bloodworlh, J., concurs. Lulce, J., dissents.