167 Ga. 136 | Ga. | 1928
Lead Opinion
The action against the two defendants was joint. Th'e jury returned a joiaat verdict against them. Judgment was entered up against them jointly. Each defendant filed a separate motion for new trial. Both motions were overruled. Each defendant sued out a separate bill of exceptions returnable to the Court of Appeals, to review the judgment overruling its motion for new trial. Each defendant, in order to supersede the judgment
The first relief sought by petitioner is to’have set aside and canceled the separate judgments entered on the separate supersedeas bonds of the defendants and the sureties thereon. Petitioner seeks this relief upon the ground that these judgments are null and void, because the plaintiff therein has undertaken to con
Petitioner prays for a decree directing the plaintiff to enter a single legal judgment in said ease, and to preserve therein the joint liability of both defendants. On the rendition of the joint verdict in this case, a joint judgment was rendered against both defendants, thus fixing their joint liability. This judgment was legal. For this reason there is now no necessity for again entering another judgment on said verdict.
The real purpose of the petition is to secure contribution by forcing the City of Rome to pay half of the recovery in this ease. We know of no law which authorizes one joint defendant in a judgment to have a decree requiring his codefendant to pay the plaintiff therein half of the joint judgment. The only remedy which petitioner will have, if it has any remedy against the City of Rome, is one for contribution. The right of contribution does not arise until one joint obligor has paid all or more than his part of the joint obligation. If petitioner wishes to put itself in position to have contribution from its codefendant, it must first pay up the joint judgment against it and the City of Rome, or more than its portion thereof. The. right of contribution does not arise until the party seeking it pays off the joint obligation or more thereof than his share. “In cases of joint, or of joint and several, or of several liabilities of two or more persons, where all are equally bound to bear the common burden, and one has paid more than his share, he is entitled to contribution from the others; and whenever the circumstances are such that an action at law will not give
After litigating with the plaintiff in these judgments through all the courts, the railway company now comes into a court of equity and seeks to enjoin her from enforcing the same until the liability of the defendants thereon, as between themselves, has been fixed and adjudicated. He who would have equity must do equity. Civil Code (1910), § 4521. This is a favorite maxim of equity. Duke v. Ayers, 163 Ga. 444, 454 (136 S. E. 410); Magid v. Byrd, 164 Ga. 609, 621 (139 S. E. 61). Certainly petitioner should not be allowed to enjoin the plaintiff from enforcing her judgment against it and the surety on its supersedeas bond, when it does not pay or tender to her the amount which it admits it owes upon the joint judgment. In these circumstances a court of equity will not open its doors to petitioner and grant it injunctive relief.
If petitioner is entitled to contribution from the City of Borne, it has an ample remedy at law by which this right can be enforced. Petitioner can have an execution issue on the joint judgment already entered, pay the same off, and have payment by it entered on the fi. fa. to enforce said judgment, and thus have
Applying the above principles, the petition does not make a case entitling the petitioner to the relief sought; and for this reason the trial judge erred in not sustaining the demurrer to the petition. Judgment reversed.
Rehearing
ON MOTION FOR REI-IBARING.
This case is distinguishable from Finley v. Southern Railway Co., 5 Ga. App. 722 (64 S. E. 312), Irwin v. Riley, 68 Ga. 605, and similar cases. In those cases the question of the right of a plaintiff in a joint judgment, where the joint defendants sue out separate bills of .exceptions, to enter judgment upon the separate supersedeas bonds, upon affirmance of the joint judgment, was not involved. This right is given by our statute, and is independent of the joint judgment.