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2018 Georgia Code 10-7-54 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 10-7-54 Case Law from Google Scholar Amendments to OCGA 10-7-54

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

10-7-54. Endorser's right to control judgment on debt and execution thereon.

Every endorser who shall pay off and discharge the debt on which he is endorser, either pending the action or after judgment, whether the judgment against the principal and the endorsers is joint or several, shall be entitled to control the judgment and execution founded thereon against the principal and all prior endorsers, in the same manner, upon the same proof, and under the same circumstances as provided in this article in the case of sureties; and, if such endorser shall collect the same from a prior endorser, the latter shall have the same control of the judgment or judgments against the principal or any endorser prior to him.

(Laws 1839, Cobb's 1851 Digest, p. 596; Laws 1845, Cobb's 1851 Digest, p. 598; Laws 1850, Cobb's 1851 Digest, p. 600; Ga. L. 1855-56, p. 227, § 1; Code 1863, § 2149; Code 1868, § 2144; Code 1873, § 2171; Code 1882, § 2171; Civil Code 1895, § 2990; Civil Code 1910, § 3562; Code 1933, § 103-312.)

Cross references.

- Order of liability of endorsers of commercial paper, § 11-3-414(2).

JUDICIAL DECISIONS

Right of control formerly limited to bankable instruments.

- Neither Laws 1839, Cobb's 1851 Digest, p. 596, nor Georgia Laws 1845, Cobb's 1851 Digest, p. 598 (from which this section was derived), passed for the relief of endorsers, gave the control of executions to endorsers who had paid off the same against prior endorsers except such executions as had been issued on judgments founded on bankable instruments. Evans v. Rogers, 1 Ga. 463 (1846), later appeal, 8 Ga. 143 (1850).

Right of control limited to payment after judgment.

- Under Georgia Laws 1839, 1845, and 1850, Cobb's 1851 Digest, pp. 596, 598, and 600, when pending suit against a principal and endorser jointly, the endorser paid the note, this payment was a bar to the further prosecution of the suit, even though the further prosecution of the suit might be at the instance, and for the benefit of, the endorser. Griffin v. Hampton, 21 Ga. 198 (1857).

"Shall pay off or discharge" defined.

- When the codifiers used the expression "shall pay off and discharge" in this section, they intended that those words should have the same significance as "compelled to pay." Ezzard v. Bell, 100 Ga. 150, 28 S.E. 28 (1897).

Section applies to involuntary payment as well as voluntary. Stiles v. Eastman, 1 Ga. 205 (1846); Ezzard v. Bell, 100 Ga. 150, 28 S.E. 28 (1897).

A voluntary payment is compulsory within legal contemplation, and there is no reason why a compulsory payment should not likewise fall within the spirit of this section. Ezzard v. Bell, 100 Ga. 150, 28 S.E. 28 (1897).

Plaintiff's attorney may enter payment on execution after levy.

- Under this section, it having been discovered that there was no entry on the fi. fa. showing its payment by the endorser, pending a claim case arising under a levy made for the benefit of such endorser, the attorney for the plaintiff in fi. fa. could then make the entry. Thomason v. Wade, 72 Ga. 160 (1883).

Surety cannot control execution if cosureties do not consent to relationship.

- If an accommodation endorser agreed with the creditor to become surety for all signers of the note, but those signing did not have notice of nor accept such relation, the accommodation endorser could not control the fi. fa. under this section, merely by reason of the accommodation endorser's agreement with the creditor. Taff v. Larey, 29 Ga. App. 631, 116 S.E. 866 (1923).

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