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Call Now: 904-383-7448When two or more joint contractors, joint and several contractors, or copartners are defendants in the same action and service is perfected on one or more of the contractors or copartners and the officer serving the writ or process returns that the rest are not to be found, the plaintiff may proceed to judgment and execution against the defendants served with process in the same manner as if they were the sole defendants. If any of the defendants die pending the action, his representative may be made a party and the case may proceed to judgment and execution as in other cases against the representatives of deceased persons.
(Laws 1820, Cobb's 1851 Digest, p. 485; Code 1863, § 3263; Code 1868, § 3274; Code 1873, § 3350; Code 1882, § 3350; Civil Code 1895, § 5009; Civil Code 1910, § 5591; Code 1933, § 3-301.)
This section changed the common law. Ross v. Executors of Everett, 12 Ga. 30 (1852); Raney v. McRae, 14 Ga. 589, 60 Am. Dec. 660 (1854).
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 an 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).
Dismissal of parties on joint contract was regulated by former Code 1863, §§ 3261, 3262, 3263 and 3264 (see now O.C.G.A. §§ 9-2-26,9-2-27, and9-13-59). Sanders v. Etcherson, 36 Ga. 404 (1867); Stanford & Golden v. Bradford, 45 Ga. 97 (1872); Lippincott & Co. v. Behre, 122 Ga. 543, 50 S.E. 467 (1905).
This section permits joint provisors in same county to be joined. Booher v. Worrill, 43 Ga. 587 (1871).
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).
Verdict against surety on promissory note may be had when principal was not found in the county. Vandiver v. Third Nat'l Bank, 15 Ga. App. 433, 83 S.E. 673 (1914).
- Judgment recovered in action against partnership binds both the partnership assets and the individual assets of the partners who were served; it need not be rendered expressly against the individual members who were served in order to bind their 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).
Cited in Graham v. Marks & Co., 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); McConnon & Co. v. Martin, 33 Ga. App. 392, 126 S.E. 272 (1925); Ragan v. Smith, 49 Ga. App. 118, 174 S.E. 180 (1934); Dillingham v. Cantrell, 54 Ga. App. 622, 188 S.E. 605 (1936); Winder v. Winder, 218 Ga. 409, 128 S.E.2d 56 (1962).
- 59 Am. Jur. 2d, Parties, §§ 128 et seq., 149 et seq.
- 67A C.J.S., Parties, §§ 55, 67 et seq., 76, 78, 86 et seq.
- Judgment against less than all parties to contract as bar to action against others, 1 A.L.R. 1601.
Actions at law between partners and partnerships, 21 A.L.R. 21.
Release of one of several joint or joint and several contract obligors as affecting liability of other obligors, 53 A.L.R. 1420.
Payment by one of two or more joint and several debtors as suspending or tolling limitation, 71 A.L.R. 375; 74 A.L.R.2d 1287.
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.
Validity of exception for specific kind of tort action in survival statute, 77 A.L.R.3d 1349.
No results found for Georgia Code 9-2-26.