I. Perlis & Sons v. National Surety Corp.
129 S.E.2d 915
Ga.
1963
Check Treatment

*1 motion for a new trial is, it was not error to overrule grounds. general Judgment All the concur. Justices affirmed. I. & 21934. PERLIS SONS NATIONAL SURETY CORPORATION. February Argued January 7, 19 6 3 15, 1963 Decided February

Judgment 1963. adhered *2 Horne, Roy Friedin, Watkins, Robert D. B. Russell & Harris, plaintiff in error. Jones, Frank contra. Sparks, Cork, Benton & C. Jones, equity in Chief Justice. All suits shall be Duckworth, in county of one the defendants residence of equitable prayed. whom substantial relief Code Ann. (Const. 1945); 2-4903 of Ga. Code 3-202. This join to mean that in order uniformly law has been construed a in nonresident such relief be equitable substantial must common This to him and resident defendant. means regardless sought against relief de the resident fendant and other substantial relief nonresident, joined. Sayer nonresident can not be v. Ben nett, 369, (125 855); Airlines, 370 Fowler v. Southern SE (16 192 v. Interstate (5), 897); Ga. 845 851 SE2d Grace Bond (20 Co., 193 Ga. 810 Pearson 131); Walker, SE2d v. 218 Ga. 469 (128 328). prayers for substantial SE2d Thus some of the equitable relief must be to both the common nonresident and jurisdiction resident defendant obtain (82 Rylee v. Abernathy, defendant. 210 Ga. 673 (174 699); 220); SE2d v. SE Dallas, Persons 178 783 (95 Empire Land Co. v. 212 Stokes, 4), Ga. 707 710 (3, (3, 283). SE2d (106 790), SE2d Hayes v. 214 Ga. 624

This court in Sayer incorrectly, ruling Bennett, that the in stated, we think court (3), supra, give “To Ga. 369 such substantial defendant, of a non-resident must can the resident defendant jointly such as enforced obiter dictum and un defendant,” non-resident was was to a necessary to a there decision. challenged juris

sustaining ground demurrer Furthermore, diction, ruling exception. on that was jurisdiction, the court found ended when rulings misjoinder as to obiter dicta. rul case and rendered Rylee v. Aber ruling in ing in also treated case dictum, as obiter headnote nathy, (1), supra, 210 Ga. 673 “In dif being: order obtain a defendant he ferent from that which some of resides, must be common to both the nonresident and the mis resident defendants.” As to it was said *3 required joinder have dismissal. This over would statement deciding the fact that were there looked an to plea by to the defendant ruling striking the the established, Rylee. This once Thomas W. want any ruling pleadings the to merits of as multifariousness been obiter dictum. We demonstration would believe apparent the criticism of the cases two should incorrectness by doubts iheir made to remove to soundness caused as supra. We reference thereto in non prerequisite joining a again indispensable that to assert an for prayer resident in suit is an relief which to the resident and nonresident defend is common they independ are connected, ants. the two can be thus Unless (Code separate must, suits which under the Constitution ent and (Code statute Ann. and 2-4903; Const. brought each defendant 3-202), against his residence. of this glance allegations

A mere at and that resident reveals the entire defend- petitioner is that ant as to matters between the and strictly does cares not which of them nonresident owner defendant. This things the plaintiff that to compel seeks resident de- against to The claim fendant do. makes owner, only compel litigate it to and seeks to its claim damages Hutchinson for into court all pay and sums over and damages these per- due the contract. the surety above When by completing building forms its duties paying and for labor it materials, can then sue the owner in Crisp County and where any it resides In unpaid for that balance. owner could any set off damages, claim it and has thereon finally would the entire matter, save settlement be- conclude surety tween the principal. its There is neither law to authorize nor an making part- actual need for nership a suit in party to this Bibb The County. does bond require perform not the surety prosecutes litigation to after it its principal compel to rather its perform, him but duty perform instantly upon arises the failure principal impose perform. upon The seeks to surety owner the ex- pense litigation might doing duty, avoid protection although doing so owner denied is guarantee. the bonds requisites subjecting essential nonresident to the

jurisdiction being lacking, plea valid, it was error to overrule the same. This it unnecessary renders to rule upon the demurrers proceedings since further nuga- become (cid:127) tory.

Judgment reversed. All the Justices concur. Rehearing. asserts motion construction contract the nexus *4 parties common to all that since the contrac- defendant tor, Hutchinson, had in his answer denied execution thereof, parties were interested therein. accept We can not reasoning reason remotely does not eiren by seek recites amendment —which what Hutchinson had pleaded the contract question validity judg- or seek —to judg- ment thereon. We considered this before rendering matter original opinion ment. to our adhere judgment.