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2018 Georgia Code 10-7-46 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 10-7-46 Case Law from Google Scholar Amendments to OCGA 10-7-46

TITLE 10 COMMERCE AND TRADE

Section 7. Suretyship, 10-7-1 through 10-7-57.

ARTICLE 3 RIGHTS OF SURETY AGAINST PRINCIPAL, COSURETIES, AND THIRD PERSONS

10-7-46. Proof of suretyship - After judgment.

If judgment has been rendered without such proof of suretyship, the surety shall give at least ten days' notice to his principal of his intention to apply at the next term of the court where the judgment was entered to make such proof and to have the fact of his suretyship entered of record, together with an order for the control of such judgment and execution thereon against the principal, on payment of the same by him.

(Laws 1850, Cobb's 1851 Digest, p. 599; Code 1863, § 2144; Code 1868, § 2139; Code 1873, § 2166; Code 1882, § 2166; Civil Code 1895, § 2985; Civil Code 1910, § 3557; Code 1933, § 103-307.)

JUDICIAL DECISIONS

Surety making part payment may have fact put in record for contribution.

- Surety without paying in full the joint debt, but upon paying, either before or after judgment, a portion only thereof, may maintain against a cosurety, for the purpose of compelling contribution, the statutory proceeding for having such fact entered of record; and when such a proceeding is instituted after judgment it is not essential for the petitioner to show that the execution issued thereon has been assigned to the petitioner. Cooper v. Chamblee, 114 Ga. 116, 39 S.E. 917 (1901).

Surety must follow section if not named as surety in execution.

- If one defendant to a fi. fa., not named as security therein but claiming to be such, seeks to control it against a codefendant who is set forth as a security, to force contribution, one must proceed to obtain the legal control thereof former Code 1873, §§ 2166 and 2170 (see now O.C.G.A. §§ 10-7-46 and10-7-53). Burke v. Lee, 59 Ga. 165 (1877).

Right to control execution lost if O.C.G.A.

§§ 10-7-45 and10-7-46 not followed. - If one of joint judgment debtors has paid off the judgment, claiming to have been only a surety of the other, but without taking such steps as are required former Civil Code 1895, §§ 2984 and 2985 (see now O.C.G.A. §§ 10-7-45 and10-7-46) to have one's true relation defined on the record, one is not entitled, in a contest exclusively between oneself and others who are judgment creditors of the alleged principal, arising on a rule for the distribution of money realized from the sale of property of the latter under another execution, to control the execution so paid by the one for the purpose of competing with other creditors claiming the money. Patterson v. Clark, 101 Ga. 214, 28 S.E. 623 (1897).

RESEARCH REFERENCES

Am. Jur. 2d.

- 74 Am. Jur. 2d, Suretyship, § 170 et seq.

C.J.S.

- 72 C.J.S., Principal and Surety, § 13.

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