Pelham v. Rawleigh Co.

126 S.E. 302, 33 Ga. App. 356, 1925 Ga. App. LEXIS 770

Opinion

Broyles, C. J.

1. It is well-settled law that the principal debtor and a guarantor can not be sued as codefendants in the same action. Etheridge v. Rawleigh Co., 29 Ga. App. 698 (1) (116 S. E. 903), and authorities cited.

2. Under the ruling in Etheridge v. Rawleigh Co., supra, and Rawleigh Co. v. Salter, 31 Ga. App. 329, the contract in the instant case (on which the alleged sureties were sued in the same action which was brought against the principal debtor) was one of guaranty, and, the principal debtor and the guarantors having been joined as codefendants in the same suit, the trial judge erred in overruling the general demurrer to the petition, as such a demurrer is equivalent to a motion to dismiss the petition.

(a) The petition was defective in substance,, and was subject to the general demurrer interposed, although the demurrer did not specifically point out the defect but merely alleged that “plaintiff’s petition fails to set forth any cause of action in its favor and against either or all of the defendants.” See Martin v. Bartow Iron Works, 35 Ga. 319 (1), 323.

Judgment reversed.

Luke and Bloodworth, JJ., eoneur.