McMillan v. Heard Nat. Bank of Jacksonville

• Decision Date: 23 January 1917
• Docket Number: 7236.
• Citation: 91 S.E. 235,19 Ga.App. 148
• Parties: MCMILLAN v. HEARD NAT. BANK OF JACKSONVILLE.
• Court: Georgia Court of Appeals

91 S.E. 235

19 Ga.App. 148

MCMILLAN v. HEARD NAT. BANK OF JACKSONVILLE.

No. 7236.

Court of Appeals of Georgia, Second Division

January 23, 1917

Syllabus by the Court.

In a suit on a promissory note a petition in two separate and distinct counts, one against the defendant as maker and the other against him as surety, is not duplicitous.

When a joint action is brought against the principal and the surety on a joint and several promissory note, and the plaintiff by amendment, voluntarily dismisses his action against the principal, the surety is not thereby, ipso facto, discharged from liability.

A surety on a promissory note providing for the payment of attorneys' fees is ordinarily liable therefor.

Error from City Court of Savannah; Davis Freeman, Judge.

Suit by the Heard National Bank of Jacksonville against the South Atlantic Blowpipe & Sheet Metal Company and T. H. McMillan. Judgment for plaintiff against defendant McMillan, and he brings error. Affirmed.

P. W Meldrim, of Savannah, for plaintiff in error.

Oliver & Oliver, of Savannah, for defendant in error.

JENKINS J. (after stating the facts as above).

1. The trial judge did not err in refusing to dismiss the plaintiff's amended petition on the ground of its being duplicitous. While the use of two or more inconsistent theories as to the right to recover in the same count would not be permissible the common-law rule against duplicity was, at an early date evaded by setting out the different grounds for recovery for the same demand in separate and distinct counts. Our practice requires that the causes of action be of a similar nature, and that each count shall contain a complete cause of action in distinct and orderly paragraphs. 7 Encyclopedia Pleading & Practice, 236; Cooper v. Portner Brewing Co., 112 Ga. 895 (3), 38 S.E. 91.

2. The contention upon which the learned counsel for the plaintiff in error mainly insists is that the court below erred in refusing to sustain the demurrer, and to allow the amendment, setting up that the surety was released and discharged because the plaintiff voluntarily dismissed the suit against the principal, while maintaining it against the surety alone. While there may be, and in fact have been, instances in which such action would work such injury to the surety as to justify such a result, it cannot be stated as a rule that a surety is, ipso facto, discharged by such an act. Therefore the trial judge did not err in overruling this demurrer. The writings upon which suit is brought in the present case are joint and several obligations. Reid et al. v. Flippen, 47 Ga. 273; Booth v. Huff, 116 Ga. 8, 42 S.E. 381, 94 Am.St.Rep. 98. The liability on the notes being joint and several, it was the right of the holder to sue the principal and surety jointly, or, at his option, to sue either the principal or the surety alone. Civil Code, §§ 3553, 3559; Howard v. Brown, Adm'r, 3 Ga. 523; Reid et al. v. Flippen, 47 Ga. 273. Since the creditor thus has the right to bring his suit solely against the surety, a dismissal of the action against the maker in a joint action ordinarily works no injury to the surety, and he has no cause to complain thereof. In the case of Brooks & Tabor v. Thrasher, 116 Ga. 62, 42 S.E. 473, Justice Fish said:

"While a petition in an action against A. and B., upon a promissory note purporting to be an instrument which they had executed at the same time, A. by signing the paper on its face and B. by writing his name on the back thereof, may be amended by striking the name of A. as a defendant. * * * It was, however, in such a case, erroneous to dismiss the plaintiffs' petition upon the ground that B. appeared, from the petition, to be a surety upon the note, and the suit could not proceed against the surety after the same had been discontinued as to the principal; the note being in form a joint and several undertaking."

If, however, the particular facts and circumstances attending the dismissal of the suit against the principal in such a joint action are such as to work specific injury and damage to the surety by reason of such action, then and in such event the rule would be otherwise. In the case of Armstrong, Adm'r et al. v. Lewis, 61 Ga. 680, judgment was obtained against the maker and the accommodation indorser, and the maker appealed, giving bond and good security thereon. After judgment, and after appeal bond with good security had been given, the creditor dismissed his appeal as to the maker, thus losing, both to the creditor and the indorser, the security and protection under the bond given by the maker on appeal. This act of the creditor necessarily harmed the surety on the note. Justice Bleckley laid down the proposition that such an act by the creditor himself would result in the discharge of the surety under the circumstances detailed in the record of that case. In the case of McCarter v. Turner, 49 Ga. 310, strongly relied upon by counsel for the plaintiff in error, there was no question of suretyship involved, and, as pointed out by Justice Cobb in Waldrop v. Wolff & Happ, 114 Ga. 617, 40 S.E. 830, and by Justice Lumpkin in Johnson v. Longley, 142 Ga. 819, 83 S.E. 952, the reasoning of Judge Trippe in that case upon the question of a surety's discharge is purely obiter. In McCarter v. Turner Judge Trippe used the following language:

"The true reason of our holding is that a creditor cannot, by voluntarily bringing suit, thus discharge the surety from the necessity of giving the notice, put him at ease and off his guard, and then, after the lapse of a considerable time,

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