Turner v. McCarter

42 Ga. 491 | Ga. | 1871

McCay, J.

The record in this case shows that the defendant, having a suit pending against the complainant and Weaver, to which Weaver had filed a defense, dismissed it under such circumstances as, in law, to discharge the complainant from the debt on which the suit was founded.

Complainant sets up that he was, in fact, only security on the note, which McCarter well knew; that being only security, he rested upon Turner’s defense, and filed no plea of his own; that he stayed in attendance at the Court until it was well ascertained that the case, it being, as a plea was filed, a jury case, would not be tried, that after he had gone home, and just before the Court adjourned, the plaintiff in the suit, McCarter, in order to get clear of Weaver’s plea, dismissed the suit as to him, and as the case was then without a plea, took a judgment against the present complainant, by the Judge’s order on the minutes, under the new rules of the Court. The bill charges that, at the time the suit was dismissed as to Weaver, the note was barred by the statute of limitations, and that the necessary effect of the dismissal was to injure the complainant by depriving him of his right to go upon Weaver, the principal, in case he paid the money.

If these facts be true, we think the case a clear one for the complainant. Here was an act of McCarter, which “ increased his (complainant’s) risk, exposed him to greater liability, and injured him:” Revised Code, 2126. Here is a case in which, by the act of the creditor, “the liability of the principal became extinct:” Revised Code, 2121. This act of the principal did not and could not have come to the knowledge of the surety until after the judgment against him.

It is an every day exercise of chancery jurisdiction to grant a new trial and enjoin a judgment at law in consequence of the discovery of a defense which the complainant did not know of, and could not, with proper diligence, have known before the judgment at law: 1 Georgia Reports, 136; 2 Georgia Reports, 275; 3 Georgia Reports, 78; 4 Georgia Reports 181. This defense did not accrue until a few minutes before the judgment, and from the very nature of it could not have come to the knowledge of the security. "We are clear, therefore, that if the complainant has stated the facts truly, he has a strong claim to relief. The answer admits all the facts but one; especially, does it admit the amendment dismissing the suit as to Weaver under the circumstances charged. The fact not admitted, but positively denied, is that the complainant was Weaver’s security. We are not sure that the complainant would not have the same ground of relief, if he is to be considered a joint obligor instead of a security. It was a serious wrong against Turner for McCarter to dismiss the suit versus Weaver under the circumstances. A creditor has no right to act so as to discharge one joint obligor to the injury of his co-obligor. And even under the state of facts set forth by McCarter, however the parties might stand as to him, as between themselves Weaver was the principal, and the loss of the debt as against Weaver would be a total loss to Turner if he has it to pay.

But we think the evidence that Turner was only surety, even as to McCarter, is very strong. On one side we have the statement of Turner and of Weaver, of two of the arbitrators and of Norton. On the other, the statement of McCarter, and of two others, both of whom, however, only testify negatively, to-wit: that they did not hear the statements testified to by the other witnesses. The evidence for the complainant largely preponderates, and we think the injunction ought to have been granted. Indeed, we suppose the refusal of the Judge was not put on the facts but on the law, and on the effect of the judgment. But as we have said, this was not under the circumstances a bar, and we reverse the judgment.

Judgment reversed.