Register v. Andris

Court of Appeals of Georgia

Register v. Andris

64 S.E.2d 196, 83 Ga. App. 632, 1951 Ga. App. LEXIS 925

CourtCourt of Appeals of Georgia

DecidedMarch 16, 1951

Docket33261

StatusPublished

Cited by14 cases

This text of 64 S.E.2d 196 (Register v. Andris) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Register v. Andris, 64 S.E.2d 196, 83 Ga. App. 632, 1951 Ga. App. LEXIS 925 (Ga. Ct. App. 1951).

Pincite

Opinions

Worrill, J.

John Andris, on November 17, 1949, brought in the Superior Court of Chatham County an action against Robert Register and Sidney W. Register to recover damages for alleged assault and battery upon him. Subsequently by amendment he dismissed one of the three counts and also struck the name of Robert Register as a defendant. The defendant, Sidney W. Register, filed a plea in bar, alleging that the aforesaid amendment was filed in consideration of $2500 paid to the plaintiff by Robert Register, the alleged joint tort-feasor, in settlement of his liability, and amounted to an accord and satisfaction of the claim against both defendants and also discharged Sidney W. Register. The plaintiff answered, stating that he executed to Robert Register on June 24, 1950, a covenant not to sue in consideration of $2500, but denying that it released Sidney W. Register, and praying that the plea in bar be denied. The court, on a hearing without a jury by consent of counsel, and on these pleaded facts overruled the plea, and the exception here is to that judgment.

Admittedly the sole issue here is whether or not a covenant not to sue executed lis pendens to one of two joint tort-feasors operates as a release to the other. This question is controlled adversely to the plaintiff in error by Moore v. Smith, 78 Ga. App. 49 (50 S. E. 2d, 219). In that case the suit was instituted, as shown by the record in the office of the clerk of this court, on April 16, 1947. The covenant not to sue was executed on August 29, 1947, and the trial was had on September 19, 1947,, at which time the covenantee was dismissed as a defendant. On [633]*633these facts this court held: “The release from liability, for a consideration, of one of two defendants sued jointly releases the other, for there can be but one satisfaction of the same claim for damage or injury; but, to the contrary, where as here, the, clear intendment of the agreement between the plaintiff and the dismissed defendant is but a covenant not to sue and not an accord and satisfaction of the claim itself, the other defendant is not released.” See generally, as to the distinction between a covenant not to sue and a release, Atlantic Coast Line R. Co. v, Ouzts, 82 Ga. App. 36 (60 S. E. 2d, 770).

This case was considered by the whole court as provided by the act approved March 8, 1945 (Ga. L., 1945, p. 232).

Judgment affirmed.

Sutton, C.J., MacIntyre, P. J., Gardner and Townsend, JJ., concur. Felton, J., dissents.

Free access — add to your briefcase to read the full text and ask questions with AI

Worrill, J.

John Andris, on November 17, 1949, brought in the Superior Court of Chatham County an action against Robert Register and Sidney W. Register to recover damages for alleged assault and battery upon him. Subsequently by amendment he dismissed one of the three counts and also struck the name of Robert Register as a defendant. The defendant, Sidney W. Register, filed a plea in bar, alleging that the aforesaid amendment was filed in consideration of $2500 paid to the plaintiff by Robert Register, the alleged joint tort-feasor, in settlement of his liability, and amounted to an accord and satisfaction of the claim against both defendants and also discharged Sidney W. Register. The plaintiff answered, stating that he executed to Robert Register on June 24, 1950, a covenant not to sue in consideration of $2500, but denying that it released Sidney W. Register, and praying that the plea in bar be denied. The court, on a hearing without a jury by consent of counsel, and on these pleaded facts overruled the plea, and the exception here is to that judgment.

Admittedly the sole issue here is whether or not a covenant not to sue executed lis pendens to one of two joint tort-feasors operates as a release to the other. This question is controlled adversely to the plaintiff in error by Moore v. Smith, 78 Ga. App. 49 (50 S. E. 2d, 219). In that case the suit was instituted, as shown by the record in the office of the clerk of this court, on April 16, 1947. The covenant not to sue was executed on August 29, 1947, and the trial was had on September 19, 1947,, at which time the covenantee was dismissed as a defendant. On [633]*633these facts this court held: “The release from liability, for a consideration, of one of two defendants sued jointly releases the other, for there can be but one satisfaction of the same claim for damage or injury; but, to the contrary, where as here, the, clear intendment of the agreement between the plaintiff and the dismissed defendant is but a covenant not to sue and not an accord and satisfaction of the claim itself, the other defendant is not released.” See generally, as to the distinction between a covenant not to sue and a release, Atlantic Coast Line R. Co. v, Ouzts, 82 Ga. App. 36 (60 S. E. 2d, 770).

This case was considered by the whole court as provided by the act approved March 8, 1945 (Ga. L., 1945, p. 232).

Judgment affirmed.

Sutton, C.J., MacIntyre, P. J., Gardner and Townsend, JJ., concur. Felton, J., dissents.

Cite This Page — Counsel Stack

Bluebook (online)

64 S.E.2d 196, 83 Ga. App. 632, 1951 Ga. App. LEXIS 925, Counsel Stack Legal Research, https://law.counselstack.com/opinion/register-v-andris-gactapp-1951.

Opinions

Related

Cite This Page — Counsel Stack