Hall v. Harris, (Nos. 1,709, 1,710.)

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtRUSSELL
Citation65 S.E. 1086,6 Ga.App. 822
Docket Number(Nos. 1,709, 1,710.)
Decision Date09 November 1909
PartiesHALL et al. v. HARRIS et al. (two cases).

65 S.E. 1086
6 Ga.App.
822

HALL et al.
v.
HARRIS et al. (two cases).

(Nos. 1, 709, 1, 710.)

Court of Appeals of Georgia.

Nov. 9, 1909.


1. Contribution (§ 1*)—Subrogation (§ 4*) — Nature and Grounds of Obligation — Joint Liabilities.

The right to have contribution, originally an equitable right, depends upon an implied promise on the part of each of several co-obligors to pay severally his proportionate part of the amount which has been advanced by that co-obligor who has paid the joint obligation. Consequently, in a case where one. of the co-obligors has paid a promissory note, such promissory note is not the basis of the action for contribution. The right of action has no connection with the promissory note, except that the payment of the note may afford evidence of the sum of money advanced by the paying co obligor, and afford means for determining the aliquot portion thereof for which the defendant may be liable, by reason of his implied promise to repay.

(a) The co-obligor's right of action for contribution arises at the time that he parts with his money in discharging, in whole or in part, the joint liability. He is not subrogated to the rights of the creditor upon the original obligation, though if, under the particular circumstances of the case, an action at law will not give a complete remedy, equity may entertain jurisdiction to afford such relief as is appropriate.

[Ed. Note.—For other cases, see Contribution, Cent. Dig. § 1; Dec. Dig. § 1;* Subrogation, Cent. Dig. § 13; Dec. Dig. § 4.*]

2. Contribution (§ 1*)—Actions—Joint Assignment.

A joint action for contribution cannot be maintained against several co-obligors. Co-obligors, who are liable for contribution, are severally liable upon the implied promise of each to repay the payment advanced in his behalf, and the action for contribution must proceed against each, and separate judgments be rendered against each. The right of action to enforce contribution may be assigned; but, to authorize the assignee of this right to maintain an action for that purpose, it must be made to appear that there was an actual assignment of that specific right. The transfer of the original obligation is merely evidence of the obligation of all of the joint obligors to the original payee, and not evidence of the liability of one joint obligor to another. The right to recover upon the implied promise to pay (which inures to the benefit of that co-obligor who advanced money to discharge the common obligation) is separate and distinct from the original contract, and must be expressly conveyed to one who would derive any benefit from the assignment of this right.

[Ed. Note.—For other cases, see Contribution, Cent Dig. § 19; Dec. Dig. § 1.*]

3. Parties (§ 61*) — Bringing in New Parties.

It was not error to refuse an amendment which introduced a new party plaintiff, without showing that some right of the original plaintiff was connected with the cause of action, which he desired to assert in the name of the nominal party to be substituted.

[Ed. Note.—For other cases, see Parties, Dec. Dig. § 61.*]

(Syllabus by the Court.)

Error from City Court of Fitzgerald; D. B. Jay, Judge.

Action by J. C. Hall and another against J. H. Harris and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

J. C. Hall and H. Drenney brought an action to recover the proportionate parts alleged to be due by the defendants as co-obligors upon a promissory note for $3,200 and interest; and the judgment dismissing their petition is the subject-matter of this bill of exceptions. The petition alleged, that on October 1, 1902, J. H. Harris, M. Buice, John A. Phillips, Samuel Greer, and C. B. White executed their promissory note for $3,200, bearing interest from date at the rate of 8 per cent. per annum, payable on demand, to the order of the First National Bank of Fitzgerald (a copy of

[65 S.E. 1087]

which is attached to the petition); that on October 21st, Samuel Greer, on the demand of the First National Bank of Fitzgerald, paid said bank the full amount of said note; that the said J. H. Harris, M. Buice, C. B. White, and John A. Phillips refused and declined to pay their portion; that on February 3, 1903, Greer transferred the note to Frederick R. Greer; and that later Frederick R, Greer indorsed the note, and it came to be for value the property of the petitioners. Demand upon the co-obligors and refusal to pay is alleged. The ninth and tenth paragraphs of the petition show that the pro rata amount due by each of the defendants is $640, with interest and attorney's fees.

At the appearance term the defendants demurred, upon the grounds that there is a misjoinder of parties defendant; that the petition as a whole does not state sufficient facts to set out a cause of action against the defendants jointly, nor sufficient facts to give the court jurisdiction to entertain the suit as brought; and that, if a cause of action in favor of the plaintiffs exists against any of the defendants, it is not a joint cause of action, but several against the separate defendants. There were special demurrers as to the alleged demand, and as to the claim of attorney's fees, and also calling attention to the fact that the petition does not state to whom Frederick R. Greer indorsed the note, or when or how the note became the property of the plaintiffs. The plaintiffs offered an amendment by which it was proposed to state that "Frederick R. Greer sues for the use of J. C. Hall and H. Drenney, " and the court disallowed the amendment, and sustained an oral motion to dismiss the action.

E. Wall, for plaintiffs in error.

L. Kennedy, for defendants in error.

RUSSELL, J. (after stating the facts as above). We are satisfied that the trial...

To continue reading

Request your trial
21 practice notes
  • Mo. Dist. Telegraph Co. v. S.W. Bell Tel. Co., No. 34562.
    • United States
    • United States State Supreme Court of Missouri
    • 18 Marzo 1936
    ...Encyc. of Practice, 502; 13 C.J. 834; Thompson v. Hibbs, 45 Ore. 141, 76 Pac. 778; Fischer v. Gaither, 32 Ore. 161; Hall v. Harris, 6 Ga. App. 822, 65 S.E. 1086. (e) Also for the above reasons, the court erred in refusing separate trials. (2) Since this was an action at law the trial court ......
  • Beane v. Nelson, No. 28672.
    • United States
    • United States Court of Appeals (Georgia)
    • 24 Febrero 1941
    ...either in law or in equity." Atlantic Coast Line R. Co. v. Hart Lumber Co, 2 Ga.App. 88, 89, 58 S.E. 316, 317. See also Hall v. Harris, 6 Ga.App. 822(3), 65 S.E. 1086; Jones v. Reed, 58 Ga. App. 72, 74, 197 S.E. 665. No right whatever being shown in Fenner & Beane as to the chose in action ......
  • Azzolina v. Order of Sons of Italy
    • United States
    • Supreme Court of Connecticut
    • 7 Mayo 1935
    ...share. Hodgson v. Baldwin, 65 Ill. 532; Lorimer v. Julius Knack Coal Co., 246 Mich. 214, 224 N. W. 362, 64 A. L. R. 210; Hall v. Harris, 6 Ga. App. 822, 65 S. E. 1086; 5 C. J. pp. 1340, 1364; 13 C. J. p. 836. The judgment should have awarded to the plaintiffs, as against each of the defenda......
  • Banks County v. Stark, No. 34535
    • United States
    • United States Court of Appeals (Georgia)
    • 20 Mayo 1953
    ...action, he cannot sustain the [88 Ga.App. 375] same by amending his petition so as to sue for the use of another party.' Hall v. Harris, 6 Ga.App. 822(3) 65 S.E. 1086, holds: 'It was not error to refuse an amendment which introduced a new party plaintiff, without showing that some right of ......
  • Request a trial to view additional results
21 cases
  • Mo. Dist. Telegraph Co. v. S.W. Bell Tel. Co., No. 34562.
    • United States
    • United States State Supreme Court of Missouri
    • 18 Marzo 1936
    ...Encyc. of Practice, 502; 13 C.J. 834; Thompson v. Hibbs, 45 Ore. 141, 76 Pac. 778; Fischer v. Gaither, 32 Ore. 161; Hall v. Harris, 6 Ga. App. 822, 65 S.E. 1086. (e) Also for the above reasons, the court erred in refusing separate trials. (2) Since this was an action at law the trial court ......
  • Beane v. Nelson, No. 28672.
    • United States
    • United States Court of Appeals (Georgia)
    • 24 Febrero 1941
    ...either in law or in equity." Atlantic Coast Line R. Co. v. Hart Lumber Co, 2 Ga.App. 88, 89, 58 S.E. 316, 317. See also Hall v. Harris, 6 Ga.App. 822(3), 65 S.E. 1086; Jones v. Reed, 58 Ga. App. 72, 74, 197 S.E. 665. No right whatever being shown in Fenner & Beane as to the chose in action ......
  • Azzolina v. Order of Sons of Italy
    • United States
    • Supreme Court of Connecticut
    • 7 Mayo 1935
    ...share. Hodgson v. Baldwin, 65 Ill. 532; Lorimer v. Julius Knack Coal Co., 246 Mich. 214, 224 N. W. 362, 64 A. L. R. 210; Hall v. Harris, 6 Ga. App. 822, 65 S. E. 1086; 5 C. J. pp. 1340, 1364; 13 C. J. p. 836. The judgment should have awarded to the plaintiffs, as against each of the defenda......
  • Banks County v. Stark, No. 34535
    • United States
    • United States Court of Appeals (Georgia)
    • 20 Mayo 1953
    ...action, he cannot sustain the [88 Ga.App. 375] same by amending his petition so as to sue for the use of another party.' Hall v. Harris, 6 Ga.App. 822(3) 65 S.E. 1086, holds: 'It was not error to refuse an amendment which introduced a new party plaintiff, without showing that some right of ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT