Sutherlin v. Underwriters' Agency

McCay, Judge. 1. Under the express words of the Code, section 3316, an attachment bond is amendable. The defect in the bond in this case was plainly a mere mistake — a clerical error. In the very nature of things, it is manifest that it was the purpose of the signers of it to make it payable to the defendant. They made and delivered it to the officer with that intent. To fill up the blank is not to alter in the least the contract actually-made, and we do not think the security could take any advantage of the act, as it would, in fact, be, after it is amended, the very contract he intended by his signature to make. In substance, this right of the surety is denied in Hanson vs. Grawley, 51 Georgia, 529, as the court there held that a memorandum declaring the note payable in gold would bind the security, though it was added after his signature, and without his knowledge, if it were, in fact, true that such was the original contract. But as new security was in this case tendered, we think the right to amend was the stronger. No harm could come. The law is substantially complied with, whieli is all. that is required, as section 6 of the Code declares. 2. Did this case stand only on the open policy, it is not so clear to us that a joint action would lie; but it must be remembered that the plaintiff’s right stands not only on this, but on his receipt. That is in the name of the “Underwriters’ Agency,” and is signed by Rust, as the agent, not of each company, but of all. -Taking both these papers together, the contract is a joint contract, though, by its terms, eacli is only liable to pay his share. It is like a partnership with a firm name, which might contract by its name, and yet [447] stipulate in terms the liability of each partner. In England, there might be difficulty in enforcing such a contract at law, for want of a power in the jury to find auything but a general verdict. But under our law the jury has such a right, and no such difficulty exists. Taking both these papers together, we think the contract is clearly a joint one, however precisely it may fix the liability of each for its own share, and we do not doubt that such was the intent of the companies. We have seen a .fire policy of these same companies where there was no such open policy, but the insured’s name was in the policy itself, and though the same general stipulation as to separate liability was there, as here, yet there was another provision to the effect that if there should be necessity for a resort to judicial proceedings, one joint suit against all, or even a suit against one, should settle the matter. 3. As to the motion to dismiss the bill of exceptions because neither of the errors complained of were in a final judgment, we say, as to the attachment the order dismissing it was final as to the plaintiff’s rights. He lost by the judgment any lienhe had got by his attachment. He lost any summons of garnishment he may have served, and as we all know it is generally only by a summons of garnishment that a foreign insurance company can be got at at all. And this loss was final. The only way in which the error could be corrected was to file a bill of exceptions as to a final judgment. Suppose the plaintiff, after his attachment was dismissed, should go on and get a final judgment, he would not have a right to except to that judgment, and it is only as incidental to a final judgment that an interlocutory bill of exceptions can come up. The same thing may be said as to the other error complained of. If the plaintiff had gone on against the one company, and got a final judgment against it, he would have no cause of complaint against that judgment. 4. Nor do we think his amendment was a waiver of his right to except. The judge certifies that he dismissed the plaintiff’s case for misjoinder, and then allowed an amendment. It is the same as though he had stricken out the three [448] companies. The motion to dismiss the writ of error is an appeal to technical.rules of pleading and practice, which is not, by our law, looked upon favorably. 5. We do not think it was error to refuse plaintiff's motion for a judgment by default. It was plain from the evidence that the defendant did not have the ,custody of the ■paper, but that it was lost amongst the lawyers and clerks, and it would have been very unjust to punish the defendant. There was no need for the affidavit of the defendant, as by other proof the court was made aware of the loss, and that the paper was not in the power or custody of ■ the defendant. Judgment reversed.