160 Ga. 723 | Ga. | 1925
(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
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).
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.