Maynard v. Hunnewell

Crawford, Justice.

A motion was made by counsel for defendant in error to dismiss this case for want of proper service.

The case itself arose on a motion in the court below to enter up a judgment upon a verdict which had been rendered against the defendant in a distress warrant, against the said defendant and his two securities on the replevy bond for the condemnation money found in said verdict. This motion was resisted upon several grounds; issues were formed thereon, and upon the trial a ■ verdict was found for the defendants ; the plaintiff being dissatisfied with the rulings of the court and the verdict, excepted.

Service of the bill of exceptions was perfected upon Mrs. Hunnewell, but none upon Thomas F. Hampton, administrator, etc., who was her co-defendapt, and whose intestate was her testator’s co-security on the replevy bond. This failure to serve the other defendant is fatal to a hearing in this court.

The verdict and judgment on the trial of the issues formed on the motion in the court below were in favor of both defendants ; their testator and intestate were co-securities, with all the rights of contribution between themselves; to set aside therefore the verdict and judgment as to one, leaving it standing in favor of the other, would work a discharge to him as to his liability to contribute, if a final judgment should be obtained against *283 this defendant in error. Any act of a creditor which operates as a discharge to one security is such an injury to the other as to discharge him also, and the failure to make Hampton a party by the plaintiff in error leaves him discharged.

Independently of this the ruling in this case is supported by that of Jordan vs. Kelly & Brothers, decided at the last term, not yet reported, and Curey vs. Hitch, sol. gen. et al., 57 Ga., 197 .

The case must be dismissed.