Hosch v. Saunders

Stephens, J.

1. A representation to this court that the plaintiff in error, who is complaining of a judgment against him in a certain sum as defendant in the court below, will make applicaton for a discharge in bankruptcy, and that the defendant in error renounces any right, title, or interest whatsoever in the judgment obtained, and that therefore the question now presented in the bill of exceptions has become moot, is not sufficient to show that the question under consideration has become moot, and therefore is not sufficient as a ground for dismissal of the bill of exceptions.

2. No judgment upon a dissolution bond given by the defendant in attachment can be maintained against the surety thereon where no judgment has been obtained in the attachment suit against the principal debtor. A judgment rendered upon the same cause of action in another suit instituted by the same plaintiff against the same principal debtor is not such a judgment against the principal debtor as is sufficient as a condition precedent to the rendition of a judgment against the surety upon the dissolution bond in the attachment proceeding.

3. The above ruling applies whether or not the surety upon the dissolution bond given by the defendant in attachment is dischargeable by reason of an adjudication in bankruptcy of the principal debtor, as in either event, before a judgment can be maintained against the surety upon the dissolution bond, a judgment in the attachment proceeding must be rendered against the principal debtor. See, in this connection, Alvaton Mercantile Co. v. Caldwell, 156 Ga. 317 ( 119 S. E. 25 ); Light v. Hunt, 17 Ga. App. 491 ( 87 S. E. 763 ).

4. The motion to dismiss the bill of exceptions is denied, and the judgment of the lower court is reversed.

Judgment reversed.

Jenhins, P. J., and Bell, J., concur.