Webb v. Saunders

118 S.E. 43, 155 Ga. 498, 1923 Ga. LEXIS 107

• Court: Supreme Court of Georgia
• Decided: April 14, 1923
• Docket: No. 3399
• Status: Published

Opinion

Beck, P. J.

(After stating the foregoing facts.)

1. The judgment rendered by the court was proper under the pleadings and the evidence submitted. The judgment rendered in .favor of the plaintiff in the original suit, the Third National Bank of Atlanta, fixed and determined the amount for which the maker of the note sued on was liable in the first instance. And the judgment subsequently rendered, fixing the relative liabilities of the maker, the indorsers, and the surety, had the same effect as if it had béen rendered at the time of taking the first judgment. The fact" that that issue was postponed, and the judgment in favor of the original plaintiff was rendered at a term prior to that at which the judgment fixing the respective liabilities of the indorsers was rendered, did not in any way affect the relative liability of the parties for the amount determined and adjudicated by the first verdict and judgment. On the trial of the present case it was shown that Saunders had paid off the judgment recovered by the bank. At the trial had to fix the relative liabilities of the indorsers, Saunders, Adams, and Carlton, the liability of Saunders was fixed as that of a second indorser, and against Adams and Carlton a liability as first indorsers was found'and adjudicated; and it was also adjudicated that Saunders should recover in full against Oliff as maker, and Adams and Carlton as first indorsers, whatever he might have to pay by virtue of his having become indorser upon the note. That amount had already been fixed by the first judgment; and when Saunders paid it, he was entitled to recover against Carlton and Adams the full amount, as well as against Oliff. That judgment was brought to this court for review by Carlton and Adams, and Carlton filed a supersedeas bond, with Webb, the petitioner, and others as sureties. The supersedeas bond filed had the usual condition — for the payment of the eventual condemnation-money, and all subsequent costs. In section 6165 (2) of the Civil Code it is provided, that, “ If the judgment of the court below is affirmed, it shall and may be lawful for the party gaining said ease in the Supreme Court to enter up judgment against the principal and his securities on said [supersedeas] bond, in the same way and manner that judgment is entered up on appeal bonds, or bonds given for the stay of execution.” Under the provisions of this. statute, when the judgment of the court below fixing the relative liability of the parties, Carlton, Adams, and Saunders, was affirmed upon appeal by Carlton, and the remittitur was made the judgment of the court below, Saunders had the right to enter up judgment on the supersedeas bond for the principal, interest, and costs. The provisions of the code section just quoted were discussed in the case of Gwyer v. Kennedy, 61 Ga. 255, and the right-of the obligee in such a bond to enter a judgment for the eventual condemnation-money was set forth and discussed.

The first verdict in this case in favor of the Third National Bank of Atlanta determined the amount payable by Carlton. No further verdict and judgment to determine that amount was necessary, and Carlton’s liability to Saunders became fixed and due when Saunders paid off the judgment in favor of the bank.

Judgment affirmed.

All the Justices concur.