Mitchell v. Graham, (No. 11749.)

• Decision Date: 12 May 1921
• Docket Number: (No. 11749.)
• Citation: 107 S.E. 373,27 Ga.App. 60
• Parties: MITCHELL v. GRAHAM et al.
• Court: Georgia Court of Appeals

27 Ga.App. 60

107 S.E. 373

MITCHELL

v.GRAHAM et al.

(No. 11749.)

Court of Appeals of Georgia. Division No. 1.

May 12, 1921.

(Syllabus by the Court.)

Error from Superior Court, Floyd County; W. J. Nunnally, Judge.

Action by L. C. Mitchell against J. M. Graham and another. Judgment for the defendant named, and plaintiff brings error. Affirmed.

W. B. Mebane, of Rome, for plaintiff in error.

Willlngham, Wright & Covington and Maddox & Doyal, all of Rome, for defendant in error.

LUKE, J. On December 21, 1917, Mitchell filed suit against the Griffin Hardware Company, as principal, and Graham, as surety, on a certain promissory note, dated January 1, 1908, and due 12 months after date, there being on the back of the note several entries as to the payment of interest thereon. The surety filed a demurrer and answer, but the principal failed to plead, and a default judgment was entered as to it. Subsequently the plaintiff tendered an amendment to his petition. This amendment was objected to on the ground that the litigation was at an end, since the default judgment against the principal was tantamount to a finding discharging the surety of all liability on the note. The court disallowed the amendment, and entered judgment discharging the surety. To this ruling and judgment, the plaintiff excepted.

Regardless of whether or not the default judgment against the principal alone concluded the case and operated as a discharge of the surety, the court did not err in rejecting the proffered amendment, and in thereafter rendering judgment discharging the surety. However, it may not be amiss to state, in passing, that we are clearly of the opinion that the ruling in the case of Howard v. Johnson, 91 Ga. 319, 18 S. E. 132, is not authority for the position of defendant in error that, in a suit against a principal and a surety, where the latter defends, and the former does not, a default judgment against the principal will ipso facto operate to discharge the surety. In that case it was said:

"The trial took place on a defense presented alone by the surety, the principal not defending; and the verdict rendered was in favor of the plaintiff against the principal only, and was silent as to the surety. This was in accordance with the form of verdict which the court instructed the jury to bring in if they found the surety was discharged, or not bound." (Italic ours.)

Obviously, therefore, the all-important distinction between that case and the instant case is that, in the former, the jury found the surety not liable, whereas, in the latter, the question as to the liability of the surety was not presented to the jury.

The demurrer filed by the surety raises the point that the note sued upon was barred by the statute of limitations. There being no seal, nor anything intended as a representation thereof, after the surety's signature, the note was not as to him, a sealed instrument, and was barred after the lapse of six years from the time the right to sue accrued. See Ridley v. Hightower, 112 Ga. 476 (2), 37 S. E. 733, and cases there cited. The note, which is dated January 16, 1908, was made payable January 16, 1909, and suit was not filed until December 21, 1917. This being true, the petition was undoubtedly subject to demurrer, on the ground that the action was barred by the statute of limitations; and we are therefore mainly concerned with the question as to whether or not the proffered amendment alleged facts sufficient to prevent the running of the statute of limitations. A written entry of payment upon a note by the debtor, or any other written acknowledgment of the existing liability, is equivalent to a new promise to pay (Civil Code 1910, § 4385), and will, if made in bis handwriting, or subscribed by him, or some one authorized by him, renew a right of action already barred, or constitute a point from which the limitation shall commence running on a right of action not yet barred. Civil Code 1910, § 4383. However:

"A payment by the principal or maker of a promissory note, before...