92 Ga. 670 | Ga. | 1893
Stockton gave bis promissory note payable to the order of Westmoreland, Westmoreland indorsed it to Everett, and Everett indorsed it to tbe Bank of the State of Georgia. Everett sued Westmoreland as first indorser on the note, alleging that Stockton had failed to pay it, and that the holder, the Bank of the State of Georgia, had duly protested it for non-payment; that “ notices were served upon the plaintiff and said defendant; and plaintiff, after calling upon defendant to pay said note as payee and first indorser, who failed and refused so to do, was compelled to pay the same as aforesaid to said holder.” Everett also sued out a summons of garnishment, directed to the Richmond & Danville Railroad Company; and Westmoreland dissolved the garnishment by giving a bond for the eventual condemnation money, with one Martin as security thereon. A verdict
1. Upon its face the instrument sued on is an unconditional contract in writing; and if the plaintiff had sued upon it as such, he would have been entitled to a judgment by the court without a jury, no issuable defence having been filed on oath. (Constitution, art. 6, sec. 4, parag. 7, Code, §5145.) In his declaration, however, he voluntarily disclosed a state of facts which introduced into the case an element of condition, the condition being that there should be protest and notice. The code declares that in order to bind indorsers of promissory notes which “are made for the pui’pose of negotiation, or intended to be negotiated at any chartered bank, . . notice of the non-payment thereof,
2, 3. Under the act of October 15th, 1885 (Acts 1885, p. 96), when a summons of garnishment has been issued pending a suit for the debt, and the garnishment has been dissolved by the giving of bond and security as the law requires, judgment 'cannot be entered on the bond until a prior judgment has been entered against the defendant in the suit. Judgment in the suit should be against the defendant alone ; and when it has been
4. The bond given to dissolve the garnishment recites that “ said Everett has an action pending in the city court of Atlanta . . for the recovery of one hundred and fifty dollars principal, and interest, which the said Everett alleges is owing to him by the said Westmoreland, and that said Everett has sued out a summons of garnishment, which summons has been served on the Richmond & Danville Railroad Company. Now if the said Westmoreland shall pay to the said Everett the amount which may be recovered and the cost thereon in said action, then this bond to be void.” Martin, the security on the bond, claims that under the recital as to the amount involved, he is only bound for $160, and is not bound for the amount, of the judgment, which was for $300 principal, besides interest and costs. The court below overruled this ground of the motion, and we think was right in so doing. The contract of the surety on the bond was to pay the amount of the judgment that Everett should recover against Westmoreland, whatever that might be. The mistake in describ