Sally v. Bank of Union

Supreme Court of Georgia

Sally v. Bank of Union

103 S.E. 460, 150 Ga. 281, 1920 Ga. LEXIS 140

CourtSupreme Court of Georgia

DecidedJune 16, 1920

DocketNo. 1721

StatusPublished

Cited by21 cases

This text of 103 S.E. 460 (Sally v. Bank of Union) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sally v. Bank of Union, 103 S.E. 460, 150 Ga. 281, 1920 Ga. LEXIS 140 (Ga. 1920).

Pincite

Opinion

Gilbert, J.

1. When a surety has been sued separately from his principal,' it is not then too late for the surety to give the notice provided for in section 3546 of the Civil Code, to proceed against the principal debtor (the principal debtor being within the jurisdiction of this State). Said section provides that the surety, “at any time” after the debt on which he is liable becomes due, may give the notice.

2. Tlio 'provisions of section 35£6 of the Civil Code do not affect either the nature, obligation, construction, or validity of the contract, but go only to the remedy. See Vanzant v. Arnold, 31 Ga. 210 (4), 213, where this view was expressed in the opinion, but where the decision of the question was not necessary to the disposition of the case. “ The indorser derives his right to be released from the statute,” and not from anything contained in the contract; Howard v. Brown, 3 Ga. 523, 531. See Thomas v. Clarkson, 125 Ga. 72 (3), 78 (54 S. E. 77, 6 L. R. A. (N. S.) 658). The statute operates as the extinguishment of a remedy, and not of a right, and is therefore in the nature of a limitation of actions. 17 R. C. L. 666, and authorities cited.

3. The statute law of North Carolina, providing that a married woman is liable upon her contract of suretyship if such contract was made in North Carolina, will not be enforced in this State. The Civil Code (1910) of Georgia, § 3007, provides that “while the wife may contract, she can not bind her separate estate by any contract of suretyship.” The courts of this State will not enforce the laws of other States where their enforcement is contrary to the policy of this State as expressed by statute, as in this instance. Civil Code, §§ 9, 4240; Benton v. Singleton, 114 Ga. 548 (40 S. E. 811); 12 C. J. 438, 439; 5 R. C. L. 911, § 5.

All the Justices concur. B. B. McCowen, for plaintiff in error. Alexander & Lee, contra.

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Gilbert, J.

1. When a surety has been sued separately from his principal,' it is not then too late for the surety to give the notice provided for in section 3546 of the Civil Code, to proceed against the principal debtor (the principal debtor being within the jurisdiction of this State). Said section provides that the surety, “at any time” after the debt on which he is liable becomes due, may give the notice.

2. Tlio 'provisions of section 35£6 of the Civil Code do not affect either the nature, obligation, construction, or validity of the contract, but go only to the remedy. See Vanzant v. Arnold, 31 Ga. 210 (4), 213, where this view was expressed in the opinion, but where the decision of the question was not necessary to the disposition of the case. “ The indorser derives his right to be released from the statute,” and not from anything contained in the contract; Howard v. Brown, 3 Ga. 523, 531. See Thomas v. Clarkson, 125 Ga. 72 (3), 78 (54 S. E. 77, 6 L. R. A. (N. S.) 658). The statute operates as the extinguishment of a remedy, and not of a right, and is therefore in the nature of a limitation of actions. 17 R. C. L. 666, and authorities cited.

3. The statute law of North Carolina, providing that a married woman is liable upon her contract of suretyship if such contract was made in North Carolina, will not be enforced in this State. The Civil Code (1910) of Georgia, § 3007, provides that “while the wife may contract, she can not bind her separate estate by any contract of suretyship.” The courts of this State will not enforce the laws of other States where their enforcement is contrary to the policy of this State as expressed by statute, as in this instance. Civil Code, §§ 9, 4240; Benton v. Singleton, 114 Ga. 548 (40 S. E. 811); 12 C. J. 438, 439; 5 R. C. L. 911, § 5.

All the Justices concur. B. B. McCowen, for plaintiff in error. Alexander & Lee, contra.

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Bluebook (online)

103 S.E. 460, 150 Ga. 281, 1920 Ga. LEXIS 140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sally-v-bank-of-union-ga-1920.

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