Mcintyre v. Moore

Citation105 Ga. 112,31 S.E. 144
PartiesMcINTYRE . v. MOORE.
Decision Date23 July 1898
CourtSupreme Court of Georgia

Note —Joint Principal — Action on Foreign Judgment—Parties.

1. Where a promissory note is signed by one person, and another signs upon the same the following entry: "I do hereby subject and make liable my individual and personal real and separate estate to the payment of the within note, "—the undertaking of the latter is that of surety only and not of joint principal.

2. In a suit upon a foreign judgment, it is proper to consider the entire record, and the judgment rendered should be construed in the light of the pleadings. Though the judgment be in its terms apparently a joint one, yet, if the pleadings and the exhibits show that the liability is several only, the judgment will be construed so as to fix the liability according to the pleadings and exhibits.

3. It follows from the foregoing that where two judgments were rendered in another state, one against one defendant only and the other against the defendant and his wife, the undertaking of the latter being of the character above described', a single suit against the husband upon both judgments could be maintained in this state without joining the wife; and this is true notwithstanding the fact that the judgment in the latter case, standing alone, unaided by other parts of the record, would be construed to be a joint judgment against the husband and wife.

(Syllabus by the Court.)

Error from city court of Atlanta; H. M. Reid, Judge.

Action by A. C. Moore against P. G. McIntyre. Judgment for plaintiff. Defendant brings error. Affirmed.

Maddox & Terrell, for plaintiff In error.

Edward R. Austin, for defendant in error.

COBB, J. A. C. Moore sued P. C. McIntyre in the city court of Atlanta upon two judgments rendered against the defendant in the superior court of Buncombe county, N. C. Attached to the petition as exhibits were certified copies of the entire record in each case upon which judgments had been rendered. It appeared that one judgment had been rendered against McIntyre upon a promissory note signed by him alone. The other judgment was rendered upon a promissory note, of which the following is a copy: "$622.75. Ashville, N. C, Nov. 25, 1891. Forty days after date I owe and promise to pay to A. C. Moore or order six hundred and twenty-two dollars and seventy-five cents, for value received. [Signed] P. C. McIntyre." Immediately following the copy of the note in the record is the following: "I do hereby subject and make liable my individual and personal real and separate estate to the payment of the within note. [Signed] Mary E. McIntyre." The judgment was entered in the following form: "It Is, on motion of Thos. R. Ransom and H. B. Carter, attorneys for plaintiff, considered and adjudged that the plaintiff, A. C. Moore, have and recover of the defendants, P. C. McIntyre and Mary E. McIntyre, the sum of six hundred and twenty-two and 75/100 dollars, with six per cent. interest thereon from the 5th day of January, 1892, until paid, together with the costs of this action, to be taxed by the clerk." The defendant demurred to the petition upon various grounds, those relied on here being, in substance, as follows: First, that the petition shows that the court has no jurisdiction; second, because Mary E. McIntyre is not a party, and no reason Is alleged why she could not be sued; third, the petition sets forth no cause of action.

1. The first matter which requires our consideration is to determine what relation Mary E. McIntyre bears to the note which was the foundation of the judgment rendered against her in North Carolina. Was her undertaking that of a principal or joint maker with her husband, or was it that of surety merely? In the present case this question must be determined entirely from the paper itself. The Code of this state declares that "the contract of suretyship is that whereby one obligates himself to pay the debt of another in consideration of credit or indulgence, or other benefit given to his principal, the principal remaining bound therefor." Civ. Code, § 2966. This is but a codification of the common law, which, In the absence of any allegation to the contrary in the petition, must be presumed to be the law of North Carolina. In the light of this definition of suretyship, we must determine from the paper contained in the record what was the intention of Mrs. McIntyre when she signed the instrument subjecting her separate es-tate to the payment of her husband's note. We have...

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8 cases
  • Alropa Corp. v. Pomerance
    • United States
    • Supreme Court of Georgia
    • March 25, 1940
    ......Robinson, . 104 Ga. 256, 276, 30 S.E. 918, 42 L.R.A. 261; Patillo v. Alexander, 105 Ga. 482, 30 S.E. 644; McIntyre v. Moore, 105 Ga. 112, 31 S.E. 144; Coyle v. Southern. Railway Co., 112 Ga. 121, 37 S.E. 163; Ellington v. Harris, 127 Ga. 85, 56 S.E. 134, ......
  • Alropa Corp. v. Pomerance, 13050
    • United States
    • Supreme Court of Georgia
    • March 25, 1940
    ......Robinson, 104 Ga. 256, 276, 30 S.E. 918, 42 L.R.A. 261; Patillo v. Alexander, 105 Ga. 482, 30 S.E. 644; McIntyre v. Moore, 105 Ga. 112, 31 S.E. 144; Coyle v. Southern . Railway Co., 112 Ga. 121, 37 S.E. 163; Ellington v. Harris, 127 Ga. 85, 56 S.E. 134, ......
  • Engstrand v. Kleffman
    • United States
    • Supreme Court of Minnesota (US)
    • June 13, 1902
    ......McIntyre v. Moore, 105 Ga. 112, 31 S. E. 144.        It is urged by appellant that, because the complaint in the Wisconsin action did not allege that ......
  • Hillman v. Farmers' State Bank, (No. 15685.)
    • United States
    • United States Court of Appeals (Georgia)
    • August 8, 1924
    ......See, in this connection, Atkinson v. Bennet, 103 Ga. 50S, 30 S. E. 599; Mclntyre v. Moore, 105 Ga. 112 (1), 114, 31 S. E. 144. The decision in Brooke v. Rutland, 15 Ga. App. 26, 82 S. E. 580, cited and relied on by counsel for the ......
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