106 Ga. 853 | Ga. | 1899
A judgment was rendered in the county court of Hancock county in favor of Ellen Fox, executrix, against
Under the terms of the contract sued on in the county court,, manifestly the payee or holder of the note had the discretion-to sue either one of the makers or to bring an action against-both. It follows from this that having brought suit against both, it was at his discretion pending the action to dismiss the-suit as to one and proceed alone against the other. In the case of Stanford v. Bradford, 45 Ga. 97, it was decided that “ In a joint suit against several, if one be not served, the plaintiff' may dismiss as to the one not served; and if he go on to the jury and get a verdict, the verdict is good against those served, though there be a failure to dismiss against the defendant not. served. The defect is a mere irregularity, and .does not make the judgment void.” We do not think, therefore, that the defendant served, even if he had appeared in court and so pleaded, had the right to object to the case proceeding to judgment against him, simply because his codefendant had not been served. But conceding, for the sake of the argument, that he had such:
Judgment affirmed.