O.C.G.A. § 9-2-26 (2019)
Prosecution of action against less than all joint contractors or copartners
When 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.
History
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.
Annotations
JUDICIAL DECISIONS This section changed the common law. Ross v. Executors of Everett, 12 Ga. 30, 1852 Ga. LEXIS 87 (1852); Raney v. McRae, 14 Ga. 589, 1854 Ga. LEXIS 141 (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 Ga. App. LEXIS 782 (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 Ga. LEXIS 13 (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, and 9-13-59). Sanders v. Etcherson, 36 Ga. 404, 1867 Ga. LEXIS 55 (1867); Stanford & Golden v. Bradford, 45 Ga. 97, 1872 Ga. LEXIS 170 (1872); Lippincott & Co. v. Behre, 122 Ga. 543, 50 S.E. 467, 1905 Ga. LEXIS 255 (1905).
This section permits joint provisors in same county to be joined. Booher v. Worrill, 43 Ga. 587, 1871 Ga. LEXIS 299 (1871). Joint contractor who has been served is bound by judgment. Kitchens v. Hutchins, 44 Ga. 620, 1872 Ga. LEXIS 384 (1872). Joint executors are joint contractors. Wynn v. Booker, 26 Ga. 553, 1858 Ga. LEXIS 360 (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 Ga. App. LEXIS 137 (1914). Effect of judgment against partnership. - 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 Ga. LEXIS 180 (1934). Liability of unserved partner is not merged. Ells v. Bone, 71 Ga. 466, 1883 Ga. LEXIS 199 (1883).
RESEARCH REFERENCES Am. Jur. 2d. 59 Am. Jur. 2d, Parties, §§ 120 et seq., 144 et seq. C.J.S. 67A C.J.S., Parties, §§ 49, 62 et seq., 71 et seq. ALR. 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.