Callaway v. Harrold, Johnson & Co.

Jackson, Justice. This was an action in the statutory form on a note against several defendants as makers, and Paul and Callaway as indorsers. It appeared from the papers that all the defendants were declared against as residents of the county of Lee, and yet that a second original, with process directed to the sheriff of Lee, and not to the sheriff of Bibb county, had been sent to Bibb and served upon Callaway there, who was a resident of that county. Whereupon a motion was made to dismiss as to Callaway, which the court refused. The plaintiff was then allowed to amend the declaration and the [113] second original so as to allege that Callaway was a citizen and resident of Bibb, which was allowed. Thereupon Callaway moved that he be served regularly with the amended papers, and insisted upon a term for that purpose, which was denied him. Callaway then insisted that he could not be sued at all in the action with the other defendants, because he was merely a guarantor on the dote, and not indorser— the payee not having indorsed it — and again moved to dismiss as to him, which was again denied him ; and error is assigned upon all these rulings. 1. The court did not err in refusing to dismiss the action on account of defective service upon Callaway, or his residence in Bibb not being set out in the declaration, nor in the amendment allowed; but this court is of the opinion that the superior court did err in not having the process directed to the sheriff of Bibb in the second original, and granting a term that Callaway might be regularly served. The idea of this court is that the service by the sheriff of Bibb without process directed to him is no service, and that after the papers had been amended and the process, too, in the second original, which seems not to have been amended at all, Callaway should be served again. And this seems to have been the course pursued in 18 Georgia, 496. My own opinion is, that as Callaway did not come in to make his objections until the trial term, and then came in under this service, defective and irregular as it was, the pa pel’s, process and all, might have been -amended instanter, and the case proceed at once. The act of 1818, Cobb, 488, is very broad, broader than where codified in our Code, section 3345, and its object seems to me to have been to dispense with delays on account of these technical exceptions where the party had substantial notice. But as a different course was pursued in the case cited, I yield to my brethren and do not dissent, though Judge Lumpkin’s reasoning in 18 Ga. would seem to accord with the view I express. 2. The other objection that Callaway is not an indorser but a mere guarantor, and cannot be sued with these co-de [114] fendants, we all think unsound, because though his name be on the face of the paper with “indorser” annexed to it, the law makes him a joint maker with the others, or an indorser, immaterial which, the note having been made payable to bearer. See 13 Ga., 311; 26 Ga., 223. He is liable any way in this action. The judgment is reversed solely because of the want of process directed to the sheriff of Bibb, and the defendant Callaway must be served over again when the process is amended. The description as indorser in the note is surplusage, or may be amended if necessary, the form of action being the statutory form, and the note and signature being fully copied and annexed. Judgment reversed.