Autry v. Southern Ry. Co.
Docket Number | 6349. |
Decision Date | 20 September 1928 |
Citation | 144 S.E. 741,167 Ga. 136 |
Parties | AUTRY v. SOUTHERN RY. CO. et al. |
Court | Georgia Supreme Court |
Syllabus by the Court.
Where a joint verdict is rendered against joint defendants in a damage suit, who make separate motions for a new trial, which motions are overruled, and where the defendants sue out separate bills of exceptions to have the Court of Appeals review and reverse the said judgments, and where each defendant gives a separate supersedeas bond, upon the affirmance of these judgments by the Court of Appeals, the plaintiff can enter up separate judgments against the principals and the sureties in such bonds, and can enforce either or both of such judgments so entered upon such bonds until she gets the full amount of the joint judgment.
Where a joint judgment was entered upon the joint verdict, this fixed and preserved the joint liability of the defendants, and after the rendition of the judgments on the supersedeas bonds, there is no necessity of again entering another joint judgment on the verdict, to fix and preserve the joint liability of the defendants.
In cases of joint, several, or joint and several liabilities of two or more persons, where all are equally bound to bear the common burden, and one has paid more than his share, then and not till then, is he entitled to contribution from the others.
Petitioner should not be allowed to enjoin the plaintiff from enforcing her judgment against it and the surety upon its supersedeas bond, where it does not pay or offer to pay her the amount which it admits it owes her on the joint judgment.
The trial judge erred in not sustaining the demurrer to the petition.
Error from Superior Court, Floyd County; James Maddox, Judge.
Equitable petition by the Southern Railway Company against Mrs. Mollie Autry and others. Judgment for plaintiff, and defendant named brings error. Reversed.
Porter & Mebane, of Rome, for plaintiff in error.
Harper Hamilton, Maddox, Matthews & Owens and Paul H. Doyal, all of Rome, for defendants in error.
The action against the two defendants was joint. The jury returned a joint verdict against them. Judgment was entered up against them jointly. Each defendant filed a separate motion for new trial. Both motions were overruled. Each defendant sued out a separate bill of exceptions returnable to the Court of Appeals, to review the judgment overruling his motion for new trial. Each defendant, in order to supersede the judgment of the court below, filed separate supersedeas bonds with different sureties. Separate judgments were rendered by the Court of Appeals, affirming the separate judgment in each case. Each defendant applied to this court for a writ of certiorari. That of the Southern Railway Company was denied prior to May 28, 1927. Pending the application of the city of Rome for certiorari, and, before it was disposed of by this court, counsel for the plaintiff, on May 28, 1927, entered up judgment against the Southern Railway Company and the surety on its bond for the amount of the judgment rendered against both defendants jointly. Afterwards this court denied the application of the city of Rome for certiorari; and on June 30, 1927, counsel for the plaintiff entered up judgment against the city of Rome and the surety on its supersedeas bond for the full amount of the joint judgment. On July 25, 1927, the Southern Railway Company filed its petition in Floyd superior court against the plaintiff, the sheriff, the city of Rome, and the American Surety Company, the surety on its supersedeas bond, setting out the history of the case and the proceedings as hereinbefore set out; and prayed the court to enjoin the sale of its property levied upon under the execution issued on the judgment rendered against it and its surety on its supersedeas bond, to set aside the judgment rendered against it and its surety on its supersedeas bond, and the judgment against the city of Rome and the surety on its supersedeas bond, to enjoin the enforcement of the execution issued on said judgment, and further prayed for a decree directing the plaintiff to enter a single judgment in said case, preserving therein the joint liability of both defendants, and that the city of Rome be required to show cause why it should not be required to pay plaintiff one-half of the verdict and costs in said case Mrs. Autry, the plaintiff in the judgment, demurred upon the ground that the petition set forth no cause of action, and that petitioner was not entitled, as a matter of law, to any of the relief prayed. The court overruled the demurrer, and error is assigned on that ruling.
1. The first relief sought by petitioner is to have set aside and canceled the separate judgments entered on the separate supersedeas bonds of the defendants and the sureties thereon. Petitioner seeks this relief upon the ground that these judgments are null and void, because the plaintiff therein has undertaken to convert a joint liability into a several liability; that this is illegal, unjust, and inequitable; that said judgments are not based upon and do not follow the verdict and original judgment taken in the case; and that for these reasons they are null and void. Is this contention well founded? After a joint verdict was rendered and a joint judgment was entered thereon, the defendants made separate motions for new trial. These motions were overruled by separate judgments. To review these judgments, the defendants sued out separate bills of exceptions, returnable to the Court of Appeals, and to obtain supersedeas each defendant filed its separate bond, with separate surety, conditioned to pay the eventual condemnation money and all subsequent costs. Upon the separate affirmance by the Court of Appeals of the judgment overruling each motion, counsel for plaintiff entered a judgment on each of these bonds and the surety on each of them. Was this legal? We think this procedure was legal and valid.
In order to obtain a supersedeas in a civil case, the party shall, on or before filing the bill of exceptions, pay all costs, and give bond with good security, payable to the opposite party, and conditioned for the payment of the eventual condemnation money and all subsequent costs. "If the judgment of the court below is affirmed, it shall and may be lawful for the party gaining said case in the" appellate court "to enter up judgment against the principal and his securities on said bond, in the same way and manner that judgment is entered up on appeal bonds or bonds given for the stay of execution." Civil Code 1910, § 6165. "In all cases of appeal, where security has...
To continue reading
Request your trial