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Call Now: 904-383-7448Where, in an action against two or more joint contractors, joint and several contractors, or partners, service is perfected on only part of the contractors or partners and the officer serving the writ returns that the others are not to be found, the judgment obtained shall bind, and execution may be levied on, the joint or partnership property as well as the individual property, real and personal, of the defendant or defendants who have been served with a copy of the process. However, the judgment shall not bind nor shall execution be levied on the individual property of the defendant or defendants not served with process.
(Laws 1820, Cobb's 1851 Digest, p. 485; Code 1863, §§ 3263, 3264; Code 1868, §§ 3274, 3275; Code 1873, §§ 3350, 3351; Code 1882, §§ 3350, 3351; Civil Code 1895, §§ 5009, 5010; Civil Code 1910, §§ 5591, 5592; Code 1933, § 39-117.)
This section changed common law. Ross v. Executors of Everett, 12 Ga. 30 (1852); Raney v. McRae, 14 Ga. 589 (1854); Ells v. Bone, 71 Ga. 466 (1883); Fincher & Womble v. Hanson, 12 Ga. App. 608, 77 S.E. 1068 (1913).
- Under common law, a judgment was regarded as an entity which must stand or fall in toto, but in 1820 the legislature modified this rule with reference to actions against joint contractors; this statute was codified in this section. Crowe v. Fisher, 104 Ga. App. 725, 122 S.E.2d 755 (1961).
This section is exception to general rule that a recovery against a joint obligor on a joint contract merges the cause of action. Almand v. Hathcock, 140 Ga. 26, 78 S.E. 345 (1913).
This section assumes that judgment would bind all partners and assets if former were served. Porter v. Johnson, 81 Ga. 254, 7 S.E. 317 (1888); Hidgon v. Williamson, 10 Ga. App. 376, 73 S.E. 528 (1912).
This section permits joint provisors in same county to be joined. Booher v. Worrill, 43 Ga. 587 (1871).
Judgment in action against partnership, when one partner was served, will bind assets of partnership and also the individual property of the partner who was served with the suit. Ragan v. Smith, 178 Ga. 774, 174 S.E. 622 (1934); Grogan v. Herrington, 79 Ga. App. 505, 54 S.E.2d 284 (1949).
Judgment need not be rendered expressly against served partners in order to bind individual assets. Ragan v. Smith, 178 Ga. 774, 174 S.E. 622 (1934).
Liability of unserved partner is not merged. Ells v. Bone, 71 Ga. 466 (1883).
Joint contractor who has been served is bound by judgment. Kitchens v. Hutchins, 44 Ga. 620 (1872).
Joint executors are joint contractors. Wynn v. Booker, 26 Ga. 553 (1858).
Cited in Tedlie v. Dill, 2 Ga. 128 (1847); Dennis v. Green, 20 Ga. 386 (1856); Clayton & Webb v. May, 68 Ga. 27 (1881); Graham v. Marks, 95 Ga. 38, 21 S.E. 986 (1894); Warren Brick Co. v. Lagarde Lime & Stone Co., 12 Ga. App. 58, 76 S.E. 761 (1912); Denton Bros. v. Hannah, 12 Ga. App. 494, 77 S.E. 672 (1913); Ragan v. Smith, 49 Ga. App. 118, 174 S.E. 180 (1934); Dillingham v. Cantrell, 54 Ga. App. 622, 188 S.E. 605 (1936); Rogers v. Carmichael, 184 Ga. 496, 192 S.E. 39 (1937); Williams Bros. Lumber Co. v. Anderson, 210 Ga. 198, 78 S.E.2d 612 (1953).
- 30 Am. Jur. 2d, Executions and Enforcement of Judgments, §§ 120, 211.
- 33 C.J.S., Executions, §§ 9, 45.
- Survival of liability on joint obligation, 67 A.L.R. 608.
Right to judgment, levy, or lien against individual in action under statute permitting persons associated in business under a common name to be sued in that name, 100 A.L.R. 997.
Obligation of owners who unite in contract relating to property which they own in severalty, as joint, several, or joint and several, 122 A.L.R. 1336.
No results found for Georgia Code 9-13-59.