Higdon v. Williamson

10 Ga. App. 376 | Ga. Ct. App. | 1912

Powell, J.

(After stating the foregoing facts.)

1. In this State a judgment against partners binds the partnership and such of the individual partners as are served; and the execution that issues upon it authorizes levy upon the property of the partnership or upon the individual property of such of the partners as are served, to the same extent as if they were ordinary joint defendants. Civil Code (1910), § 5592. The rationale is that the law does not look upon the partnership as a completely distinct and separate legal entity, but as somewhat so; the partners, as to partnership debts, are joint contractors; and each is the agent of the other to a limited extent. When suit is brought for a debt due by the partnership, the plaintiff may hold the individual partners liable by serving them. If there be two partners, and one is served and the other is not, the judgment stands as any other personal judgment;, so far as concerns him who is served; as to the other partner the service, and consequently the judgment, is only partially binding; that is to say; it is binding only so far as the partner served is the agent of the partner unserved, and that is only so far as concerns the property devoted to the purposes of the partnership. If both partners are served, the judgment is a personal judgment against each and both of them, and the execution thereon may be levied upon either partnership or individual property. In the case at bar there is no contention that both partners were not served; hence, the judgment stands just as if they were ordinary joint debtors.

2. It is provided by the Civil Code (1910), § 5971, that, “When judgments have been obtained against several persons and one or more of them has paid more than his just proportion of the same, he or they may, by having such payment entered on the fi. fa. issued to enforce said judgment, have full power to control and use said fi. fa. as securities in fi. fa. control the same against principals or cosecurities, and shall not be compelled, as heretofore, to sue the codebtors for the excess of payment on such judgment.” The language, “power to control and use said fi. fa. as securities in fi. fa. control the same against principals or cosecurities,” has reference to the Civil Code (1910), § 3558, which provides that any person standing in the relation of surety who shall have paid off or discharged a judgment against himself and others may “ have the fact of such payment by him entered on the execution by the plaintiff or his attorney or the collecting .officer,” and thereupon shall have the right to control the execution and judgment against the other defendants, to the same extent as if he were the plaintiff therein, so far as is necessary to his just reimbursement.

The language of section 5971, supra, seems fully broad enough to include the case where one partner has paid off a judgment binding personally on himself and a copartner. Indeed, this section, taken in connection with the other section to which it refers (§ 3558), would seem to give to the partner paying off the judgment the right to enforce it to its full amount against the partnership assets; though there may be something growing out of the general rule that a partner can not sue the partnership except in equity (see Paulk v. Creech, 8 Ga. App. 738, and citations, 70 S. E. 145), which would forbid his having direct recourse at law upon the partnership assets. As between the two partners themselves, the rendition of the judgment, subjecting each and both of them to individual liability takes the transaction out of the partnership relation to such an extent as to make it one of those exceptions referred to “in the Paulk case, supra, wherein one partner may proceed at law against the other. In Neel v. Morris, 73 Ga. 406, it is held that equity has jurisdiction to compel contribution in a case such as the one at bar. Undoubtedly this is true; but, in our opinion, that jurisdiction is concurrent, and not exclusive. In the Neel case, supra, it was stated that some members of the court leaned to the view that the statute now contained in the Civil Code (1910), § 5971, does not apply to executions issued upon judgments against copartners. However, no decision of.the question was made. As intimated above, there may be reasons for refusing an application of the statute to cases where only one of the partners is served; but we see no reason why it is not applicable to cases like this, where both partners have been served and have become jointly and individually bound by the judgment. The affidavit of illegality presented no defense and should have been stricken. Upon like reasoning, it follows also that the magistrate erred in dismissing the levy, so far as his ruling was based on the proposition that payment by one of the partners operated to discharge the judgment in toto.

3. As to the point that the magistrate was not such a collecting officer as could receive payment and make the entry required by the code, in order to give the paying defendant control of the fi. fa. against the other defendant, it is necessary only to refer to the case of Bryan v. Meaders, 9 Ga. App. 336 (71 S. E. 491), where it was held (with a citation of the authorities) that as to debts sired in justice’s courts, the magistrate is a collecting officer.

4. The exception that the court allowed the plaintiff to file a’ writing while the certiorari was pending in the superior court, whereby he disclaimed any right to collect from his partner more than half the amount due on the execution, amounts to nothing. From a technical standpoint the court should not have considered the paper, as the judge, on the hearing of the certiorari, has no right to consider aliunde matters or to allow additions or amendments to the pleadings or the proof, but since this writing which was filed declared no more than the law recognized as being the legal status in its absence, and since the judgment sustaining the certiorari was absolutely correct, this error was harmless.

Judgment affirmed.