158 Ga. 178 | Ga. | 1924
The Civil Code (1910),- § 5688, declares that “When two or more persons sne or are sued in the same action, either on a contract or for a tort, the plaintiff may amend his declaration by striking out one or more of such defendants, and proceed against the remaining defendant- or defendants, if there is no other legal difficulty in the case.” This section is cited by the defendant in, error as authority for the judgment allowing the amendment striking one of the defendants as a party, and striking the answers of both defendants, and rendering judgment on the notes sued upon in favor of the petitioner. We are unable to agree to the construction placed on the quoted statute. We think the statute on its face plainly provides an exception which, under the facts of this case, did not authorize the striking of that portion of the answer of J. C. Troup which was germane to the original petition, and which prayed that whatever amount was found to be due by the eodefendant, Pearlie Troup, on the note be decreed and determined by the court to belong to J. C. Troup, and that he recover the amount due on the note from Pearlie Troup. Since there was no allegation of insolvency, the defendant J. C. Troup was not entitled to any injunctive relief. The code section above quoted provides that the plaintiff may amend his declaration by striking out one or more of the defendants and proceeding against the remaining defendant or defendants “if there is no other fegal diffi-culty in the case.” [Italics ours.]- The statute has been* recently construed in the case of DeLay v. Latimer, 151 Ga. 367, 369 (106 S. E. 901). The court held that the plaintiff could, “as a matter of right, strike the 'name of one of several defendants where such defendant prayed for no affirmative relief against the plaintiff'or any eodefendant.” [Italics ours.] Thus we think it is clear, where the defendant does pray for affirmative relief against the plaintiff or any codefendant,' that this constitutes a “legal difficulty” sufficient to deprive the plaintiff of the right, which otherwise he could exercise under the code section, of eliminating such defendant from the case by removing him from the petition by amendment. Measuring the answer of J. C. Troup by the principles stated above, we find that his answer contained prayers for affirmative relief which constituted a legal barrier to the striking of that defense and thus carrying the case made by said answer out of court. The answer of J. C. Troup
Judgment reversed.