4 Ga. App. 368 | Ga. Ct. App. | 1908
The defendant in error brought suit upon two joint notes, against C. V. Smith and B. O. Medloek. Each of the notes was for $300, and provided for ten per cent, attorney’s fees, and was signed by C. V. Smith and B. O. Medloek. Upon the call of the case and upon a showing for continuance, the case was continued as to the defendant Smith. The court, however, refused to continue as to the defendant Medloek, and struck his pleas and directed a verdict against him for principal, interest, and attorney’s fees. He excepts to the refusal to continue his case, to the striking of his answer, and to the direction -of the verdict against him, as well as to the judgment entered upon the verdict. It appears that both of the defendants pleaded that Medloek was only a security. Smith so pleaded explicitly and amply.. The plea of Medloek upon that subject might be subject to special demurrer; though his answer is made “as security,” and described his codefendant as principal, and, therefore, would resist a general demurrer or motion to strike.
The case, therefore, if continued at all, should have been continued as a whole. Having necessarily been brought as a -joint action, it could not be tried by piecemeal, whether Medlock was a principal joint obligor or a surety only.
The court erred in continuing a part of an indivisible case without continuing all; and all that thereafter transpired was nugatory.
Judgment reversed.