White v. Hart

35 Ga. 269

• Court: Supreme Court of Georgia
• Decided: December 15, 1866
• Status: Published

Opinion

Lumpkin, C. J.

We are inclined to think the Court erred throughout this proceeding. Formerly, under the Judiciary Act of 1799, process, if not sued and served in strict conformity to the requirements of the statute, was declared to be null and void.. This was the strong language of the statute. But all this is changed ; and relaxation, and not stringency, is the rule now. The Courts began to modify with the Act of 1853, and progressed with the broad allowance of amend-meats made by the Code, and the decisions and legislation which preceded it; so that now, if there be a legal cause of action set out in the declaration, and the defendant has had notice of the pendency of the suit, all other objections are to be disregarded, by so amending the proceedings as shall subserve the ends of justice. See, especially, Sections 200 and 3258, et passim, of the Code.

Why not allow the plaintiff to amend his writ as he desired, and take time to perfect service ? I know no time, limited by law, when the amendment of the writ should be made. I must confess, I have more doubt as to not allowing the amendment which White voluntarily caused the Clerk to make, than to disallow the one which he moved the Court to grant at its late Term.,.

In holding that Hart, the maker, could not be sued in Chattooga county, we ask, why not? He and Davis are' joint and several promissors, and the note is to be treated as the joint and several note of them all. “ I promise to pay ” is the form of the promissory noto. See Constitution, Art. 4, seo. 2, par. 10-1L. By these it will bo seen that joint promissors may be sued in either county, where either of them resides, and it is only in the case of a maker and indorser that the Oonstitutiou requires that the suit must be brought in the county where the maker resides.

Judgment reversed.