DeLay v. Latimer

106 S.E. 901, 151 Ga. 367, 1921 Ga. LEXIS 257

Opinion

Fish, C. J.

(After stating the foregoing facts.) The Civil Code (1910), § 5688, provides, that when two or more persons are sued in the same action, either on a contract or for a tort, the plaintiff may amend his declaration by striking out one or more of such de fendants, and proceed against the remaining defendant or defendants, if there is no other legal difficulty in the case. The defendant dismissed from the suit set up various grounds in her original answer and the amendment thereto why the petitioner’s claim to foreclose the mortgage should be denied, but she prayed for no affirmative relief, either against the plaintiff or her codefendant, and therefore no legal difficulty is presented why the petitioner should not exercise his statutory right to discontinue the case as to her by having her name stricken as a defendant. Bower v. Cohen, 126 Ga. 35, 37 (54 S. E. 918); Pearson v. Courson, 129 Ga. 656 (5), 660 (59 S. E. 907).

As the defendant in her answer prayed for no relief, the fact that the suit to foreclose the mortgage may in the circumstances be a proceeding in rem does not affect the ruling made.

Judgment aj/irmed.

All the Justices concur.