15993 | Ga. Ct. App. | Jan 13, 1925
1. Where guarantors are joined with their principal as co-defendants, a demurrer on the ground of misjoinder, interposed by the guarantors, is properly sustained by the court. Etheridge v. Rawleigh Co., 29 Ga. App. 698 (1) (116 S.E. 903" date_filed="1923-02-21" court="Ga. Ct. App." case_name="Etheridge v. Rawleigh Co.">116 S. E. 903), and citations; Rawleigh Co. v. Salter, 31 Ga. App. 329 (120 S.E. 679" date_filed="1923-12-07" court="Ga. Ct. App." case_name="Rawleigh Co. v. Salter">120 S. E. 679).
2. The controlling facts of this case are, in principle, identical with those of Salter’s case, supra, except that in this ease the plaintiff alleged the insolvency of the principal debtor, and sought to have the judgment against the principal and the guarantors moulded according to the liability of each under their respective contracts, and claimed that so doing would avoid a multiplicity of suits. Held:
(а) In such a suit the solvency or insolvency of the principal debtor is wholly immaterial. Penn Tobacco Co. v. Leman, 109 Ga. 428 (2) (34 S.E. 679" date_filed="1899-12-07" court="Ga." case_name="Penn Tobacco Co. v. Leman & Co.">34 S. E. 679).
(б) The power of a superior court to mould its judgment according to the exigencies of the case does not authorize a plaintiff to join in one action two. separate claims against separate defendants. Ansley v. Davis, 140 Ga. 615 (79 S.E. 454" date_filed="1913-09-27" court="Ga." case_name="Ansley v. Davis">79 S. E. 454), and citations.
(c) The equitable doctrine of joinder to avoid a multiplicity of suits has no application to an ordinary action at law of a creditor against the principal debtor and his guarantors.
Judgment affirmed.