O.C.G.A. § 10-7-42 (2019)

Annotations

JUDICIAL DECISIONS Independent remedies provided surety. - Former Civil Code 1910, §§ 3551, 3553, 3559, and 3560 were remedies to which the surety can resort for the surety’s protection, independently of any voluntary action by the creditor. McMillan v. Heard Nat’l Bank, 19 Ga. App. 148, 91 S.E. 235, 1917 Ga. App. LEXIS 36 (1917). Joint or separate actions on joint and several note. - The holder of a joint and several note may sue the obligors jointly or severally or sue any one of the signers alone. On such an obligation, one may sue the principal and surety jointly, or at one’s option one may sue either the principal or the surety alone under former Civil Code 1910, §§ 3553 and 3559. McMillan v. Heard Nat’l Bank, 19 Ga. App. 148, 91 S.E. 235, 1917 Ga. App. LEXIS 36 (1917); Johnson v. Georgia Fertilizer & Oil Co., 21 Ga. App. 530, 94 S.E. 850, 1918 Ga. App. LEXIS 389 (1918); Cone v. American Sur. Co., 29 Ga. App. 676, 116 S.E. 648, 1923 Ga. App. LEXIS 160 (1923); Bank of Madison v. Bell, 30 Ga. App. 458, 118 S.E. 438, 118 S.E. 439, 1923 Ga. App. LEXIS 504 (1923); McKibben v. Fourth Nat’l Bank, 32 Ga. App. 222, 122 S.E. 891, 1924 Ga. App. LEXIS 343 (1924), overruled, Timberlake Grocery Co. v. Cartwright, 146 Ga. App. 746, 247 S.E.2d 567, 1978 Ga. App. LEXIS 2549 (1978); Hicks v. Bank of Wrightsville, 57 Ga. App. 233, 194 S.E. 892, 1938 Ga. App. LEXIS 541 (1938). How surety may defeat liability. - A surety cannot defeat liability by proving merely that the surety received no monetary consideration; the surety would have to show that the surety’s principal did not receive any consideration or benefit from the paper sued on. Pharr v.

Burnette, 158 Ga. App. 473, 280 S.E.2d 881, 1981 Ga. App. LEXIS 2259 (1981). Dormant judgment against surety alone revivable although principal not notified. - When a scire facias proceeding is brought to revive a dormant judgment rendered against a surety on a joint and several note and the defendant objects to the revival of such judgment on the ground that the defendant’s liability had been increased and that the defendant had been discharged from liability thereon because no judgment was rendered against the principal on the note, although no service of the suit was had on the principal, it was error for the judge to refuse to revive the judgment for that reason. Hicks v. Bank of Wrightsville, 57 Ga. App. 233, 194 S.E. 892, 1938 Ga. App. LEXIS 541 (1938). Sufficiency of allegations in action against endorser. - In view of former Civil Code 1910, §§ 3541, 3553, and 3559, the plaintiff’s pleading in an action against an endorser alleging that the plaintiff was the owner and holder of the notes sued on in due course, bona fide and for value, states a cause of action and is not subject to dismissal for failure to allege the defendant’s relationship to the notes and to the other parties to the notes. Meldrim v. Peoples Bank, 28 Ga. App. 294, 111 S.E. 76, 1922 Ga. App. LEXIS 458 (1922). Effect of surety’s payment of the judgment. - Amount of the indemnity owed by an insurer to a surety was not affected by the outcome of the appeal as when the judgment was paid by the surety and when the principal had notice of the action against the surety, the surety’s payment of the judgment was conclusive of the amount and the surety could

recover such sum from the principal under O.C.G.A. § 10-7-42. Sec. Life Ins. Co. v. St. Paul Marine & Fire Ins. Co., 263 Ga. App. 525, 588 S.E.2d 319, 2003 Ga. App. LEXIS 1255 (2003), rev’d, No. S04G0322, 2004 Ga. LEXIS 1038 (Ga. Nov. 22, 2004), aff’d in part and rev’d in part, 278 Ga. 800, 606 S.E.2d 855, 2004 Ga. LEXIS 1078 (2004), vacated in part, 273 Ga. App. 91, 614 S.E.2d 477, 2005 Ga. App. LEXIS 417 (2005). When the surety on a principal’s appeal bond paid the judgment that had been entered and substituted itself for the principal’s opponents, the surety’s payment of

the judgment was not conclusive of the principal’s liability to the surety because the principal was still engaged in contesting the extent of the principal’s liability, and the judgment was not final because the judgment was still on appeal, so the second sentence of O.C.G.A. § 10-7-42 was applicable to these facts, rather than the first sentence, which applied to situations in which a judgment had reached a state of finality. Sec. Life Ins. Co. of Am. v. St. Paul Fire & Marine Ins. Co., 278 Ga. 800, 606 S.E.2d 855, 2004 Ga. LEXIS 1078 (2004).

RESEARCH REFERENCES ALR. Construction and application of contractual provision regarding payment by surety of claim as evidence of principal’s liability to surety (“conclusive evidence” clause), 144 A.L.R. 521. Judgment obtained by third person against indemnitee as conclusive against the latter, irrespective of its conclusive-

ness against indemnitor, in indemnitee’s action against indemnitor for amount paid in satisfaction of judgment, 24 A.L.R.2d 329. What constitutes action on bond, executed under law of United States, so as to be within Federal District Court’s jurisdiction under 28 USCS § 1352, 105 A.L.R. Fed. 716.