44 Ga. 620 | Ga. | 1872
This was an action against the plaintiffs in error by Hutch-ins on two joint and several promissory notes, dated before June, 1865. One of the notes was for $500 00, signed by both defendants as principals • the other for $800 00, signed by Kitchens as principal, with Humphries as security. Humphries was never served. Kitchens filed a plea under the Relief Laws. When the ease was called for trial, counsel for Kitchens moved for a continuance on account of the absence of Kitchens, who was too sick to attend Court, by whom he expected to prove the facts alleged in his plea of relief. The opposing counsel offered to admit the facts stated in the plea.
1. The Court overruled the motion for a new trial. There is no evidence in the record that there was an adjourned session of the October Term of the Court. On the 27th day of November, more than a month after the trial, and, it is presumed, after the adjournment of the Court, Kitchens made an affidavit before the Ordinary that he had paid one, if not both, of the notes sued on. On the 2d of December, the very day on which the bill of exceptions is certified by the Judge, Kitchens made another affidavit, that, as to the $500 00 note, he was only surety for Humphries. The note, as stated, is signed by him as principal, and no evidence was offered on the trial that he signed only as surety. Whether the affidavits were ever submitted to the Judge of the Superior Court, and if so, for what purpose, does not appear. They could not have been made to sustain the motion for new trial, for they are not applicable to any of the grounds taken. Copies of these affidavits are attached to the transcript of the record and to the copy bills of exceptions furnished the Judges of the Supreme Court. How they got there, it is difficult to say. They are not attached to the original bill of exceptions.
3. Perhaps if the motion for a new trial had contained the facts set forth in the affidavits of November 27th and December 2d, and a new trial asked for those reasons, and the affidavits submitted to the Judge in support of such grounds, he might have granted the new trial. As it does not appear from the record that this was done, the mere embodiment of the affidavits in the record cannot make them a part of it, and they cannot be considered by this Court in the shape in which they are brought before it.
4. As to the judgment being against Humphries, who was not served, and who, though a surety on one of the notes, was sued as principal. The notes sued on are joint and several, and Kitchens might have been sued alone. Had Humphries been served, plaintiff could have stricken his name and proceeded against Kitchens alone. There being a return of non est inventus as to Humphries, plaintiff was entitled to proceed against Kitchens: Code, 3274. True, the judgment is void as to Humphries, but Kitchens can take nothing by that.
The judgment of the Court is affirmed. (See the head-notes.)
The Judge below, in certifying the bill of exceptions, says “there was no point made before the Court about the want of process, or want of service on Humphries.” The transcript of the record shows there was process against Humphries. If there had not been, it is not clear how Kitchens could have taken advantage of it.