Sims & Auchmuty v. Clark & Co.

Bleckley, Chief Justice. 1. The suit was in Bartow county, where McGinnis, the guarantor, resided, and the declaration showed on its face that Sims & Auchmuty, the debtors by account, resided in Polk county. The latter demurred because there was no jurisdiction as to them. This point was well taken. These debtors were entitled to be sued in the county of their residence, and there was no jurisdiction over them elsewhere. Code, sections 5172, 3402, 3404. Debtors by mere account are not joint makers or promissors with one who has by a separate contract guaranteed payment of the account. The two contracts are several, not joint; and the liability on each is several. Those who contracted the account are not liable at all on the guaranty, and he who made the guaranty is not liable at all on the account. 2. The facts necessary to recover of the guarantor, including acceptance of the guaranty, were sufficiently set forth; and as there is no complaint of the finding, we must assume that they were duly proved. 3. The result is that the court erred in overruling the demurrer of Sims & Auchmuty, but correctly overruled the separate demurrer of McGinnis. As to the latter the verdict should stand; but as to the former let the action be dismissed. Judgment reversed in fart, and in fart affirmed.