Broyles, P. J.
1. A surety who has paid the debt of his principal is subrogated both at law and in equity to all the rights of the creditor. Civil Code (1910), § 3567. In this case S. Sams sued J. G. Travis on a promissory note signed by both parties and which recited that it was “for money loaned.” On the back of the note was the following indorsement: “Feb. 28, 1912, paid by S. Sams, Brooks, Ga.” By an amendment to the petition it was alleged that Sams signéd the note merely as an accomodation indorser for Travis, and-received none of the money loaned on the note, that when the note matured Travis did not pay it, and that he (Sams) paid it on February 28, 1912. Under this amendment the court did not err in overruling the demurrer which set up that the petition showed on its face that the note had been paid by one of the joint obligors and that the plaintiff accordingly had no right of action, on the note. This ruling is not in conflict with the holding in Cason v. Heath, 86 Ga. 438 (12 S. E. 678), cited by counsel for the plaintiff in error; for there the note was paid by the maker, and not by a surety or accommodation indorser.
2. The discharge of a bankrupt is not operative against a creditor who had no notice or actual knowledge of the proceedings in bankruptcy, and whose claim was not duly scheduled; but mere want of such notice or knowledge will not prevent the discharge from becoming operative if the debt was duly scheduled. Beck & Gregg Hardware Co. v. Crum, 127 Ga. 94 (56 S. E. 242); Marshall v. English-American Loan & Trust Co., 127 Ga. 376 (56 S. E. 449). In this ease the evidence showed that the plaintiff had no notice or knowledge .of the proceedings in bankruptcy, but it was silent as to whether his claim was duly scheduled therein. [715] The trial court, therefore, erred in rendering judgment in his favor, and the judge of the superior court, on certiorari, properly granted a new trial, and, as a question of fact was involved, did not err in failing to render a final judgment for the defendant.
Judgment affirmed.
Bloodworfh and Stephens, JJ., concur. Free access — add to your briefcase to read the full text and ask questions with AI