30 S.E.2d 648 | Ga. Ct. App. | 1944
1. A promissory note signed by three persons, one as maker and the other two as comakers or sureties, reciting that "I or we jointly and severally promise to pay," is a joint and several obligation, and the holder of such instrument may sue the principal and sureties jointly or at his option he may sue the principal or one of the sureties alone.
2. Where the holder of such note sues one of the sureties alone, the defendant can not invoke the soldiers' and sailors' civil relief act and have the action stayed on the ground that the maker or principal of the note, who is not a party to the suit, is in the military service of the United States, as said act is without application to such suit. And especially is this true where it does not appear that the rights of the defendant were in any way prejudiced by such action.
The record discloses that two of the three judges sitting in the appellate division of the civil court of Fulton County were of the opinion that the trial judge had the right under the soldiers' and sailors' civil relief act of 1940 to exercise a discretion and grant a stay of this proceeding, and that this case is controlled by the decision in the case of Gates v.Gates,
Under the facts of this case and the law applicable thereto, the plaintiff was entitled to a judgment against Whitfield for the balance due on the note sued on, and the appellate division of the civil court of Fulton County erred in affirming the judgment of the trial judge, staying the case.
Judgment reversed. Felton and Parker, JJ., concur. *260