Ells v. Bone

• Decision Date: 06 November 1883
• Citation: 71 Ga. 466
• Parties: ELLS v. BONE.
• Court: Georgia Supreme Court

71 Ga. 466

ELLS v. BONE.

Supreme Court of Georgia.

November 6, 1883

September Term, 1883.

A draft was drawn by a firm on an individual, and accepted suit was brought against the drawers and acceptor; service was perfected upon the acceptor and one of the drawers; the other was absent from the state, and was not served, nor was any return of service made as to him; judgment was rendered by default against the parties served; the acceptor became a bankrupt, and there were no firm assets of the drawers; the drawer who was not served having returned to the estate, suit was brought against him on the draft:

Held, that by the weight of authority at common law this liability would be merged in the first judgment, but not so in Georgia. In Georgia, judgments so obtained bind the partners or joint contractors served, and the partnership assets, but not the members who were not so served. As to their individual estates, they stand as though no judgment had been rendered in a suit upon the paper to which they were parties. Therefore, the partner not served was liable to be sued upon the draft upon his return to the state.

( a. ) The fact that no return of non est inventus was made as to the defendant on whom no service was perfected, did not operate so as to cause a merger of his liability in the first judgment.

( b. ) This case differs from that in 35 Ga. 72.

Contracts. Actions. Judgments. Debtor and Creditor. Merger. Before Judge BROWN. Bibb Superior Court. April Term, 1883.

Reported in the decision.

L. N WHITTLE; G. W. GUSTIN, for plaintiff in error.

HILL & HARRIS; J. C. RUTHERFORD, for defendant.

HALL Justice.

This case, by consent of parties, was determined by the presiding judge, without a jury, upon the following agreed statement of facts and the questions of law arising thereon:

Plaintiff, in the year 1873, was the owner of a draft due at twenty days, payable to her order, for seven hundred dollars, drawn by Ellis & Laney upon W. A. Cheny. Payments were made upon the paper, considerably reducing the debt.

Plaintiff instituted suit upon this paper, returnable to the October term, 1874, of Bibb superior court, against Cheny, the acceptor, and Ells & Laney, the drawers. Cheny and Laney were alone served; there was no return of service whatever as to Ells, and he was, in fact, not served; judgment was rendered by the court, there being no issuable defence filed under oath, against Cheny, as acceptor, and Laney, as drawer, for $332.80 principal, and $23.30 interest to July the 1st, 1875, and costs. Ells was absent from the state from the 24th day of December, 1873, to the 24th day of December, 1877, this statement as to Ells's absence was agreed to, subject to objection as to its admissibility in evidence. Cheny went into bankruptcy, and there were no funds of Ells & Laney or of Laney to satisfy the judgment. Ells having returned to Georgia, plaintiff brought suit against him, returnable to April term, 1884, of Bibb superior court, on this paper.

The question submitted was, whether Ells's liability on the paper existed after the judgment rendered against Cheny and Laney on the previous suit upon the same paper, or whether it was merged in said first judgment. The presiding judge held him liable to this suit, notwithstanding the judgment in the first suit against his co-contractors, and upon this holding, error is assigned.

While agreeing with the learned counsel for the plaintiff in error, that at common law the weight of authority would merge this liability in the first judgment on the cases cited by him, ( Robertson vs. Smith, 18 Johns R., 459; Smith vs. Black, 9 S. & R., 142; Warren vs. McNulty, 2 Gilman (Ill.) R., 325; Ward vs. Johnson, 13 Mass. 148; Mason vs. Etend, 6 Wall. R., 235; 17 Ib., 545), yet we think, under our legislation, no such effect could be given to the first judgment. The act of 1820, Cobb, p. 485, Code, §§3350, 3351, provides that where two or more joint, or joint and several contractors, or copartners, are sued in the same action, and service shall be perfected upon one or more of the joint contractors or copartners, and the officer serving the writ shall return that the rest are not to be found, the plaintiff may proceed to judgment and execution against such as were served, in the same manner as if they were the sole or only defendants.

Judgments so obtained are made to bind, and execution may be levied on the joint copartnership property, and also...