Doody Co. v. Jeffcoat

Cobb, P. J. (After stating the facts.) 1. The only questions argued in the briefs are those relating to the overruling of the plea in abatement and the striking of the name of the defendant Patterson, thus allowing the suit to proceed against Mrs. Jeff coat alone. The first suit was against Patterson as an individual. It is true that he was described as doing business in the name of the Patterson Auction Company, but it was ■ none the less a suit against Patterson as an individual. The second suit was a suit against a partnership. It is true that this partnership was alleged to have the same name as that under which Patterson, in the first suit, was declared to be doing business; and it is true that each suit was founded upon the same account; but the suits were not identical. A suit against an individual is a different thing from a suit against a partnership of which that individual happens to be a member. The code provides that when a suit has been dismissed by the plaintiff he “may recommence his suit on the payment of costs.” Civil ’Code, § 5043. This, of course, means the identical suit, and has no application where the second suit is substantially different from the one that has been brought and dismissed. See, in this connection, White v. Moss, 92 Ga. 244 (2); Ford v. Clark, 75 Ga. 612. If the plaintiff had stricken Mrs. Jeffcoat' as a defendant, leaving the suit to proceed against Patterson, a more difficult question would have arisen. 2. In Francis v. Dickel, 68 Ga. 255, it was held that if two or more defendants are sued as partners, and it appears, on the trial, that some of them are liable and others are not, the suit will not be abated or be quashed on that account, but may proceed against the other defendants. It was said that in such case the party not liable should be stricken, but if there was no objection to the evidence showing that only one was liable, the verdict against the defendant shown to be liable would not be set aside on the ground that the other party had not been stricken. In this ease only two persons were served, and judgment was rendered against one only. If there is anything in the case of Howes v. Patterson, 76 Ga. 689, which conflicts with this decision, it must yield to the older ruling. See, in this connection, Waldrop v. Wolf, 114 Ga. 617; Lippincoti v. Behre, 122 Ga. 546. The judge erred in sustaining the-cer [303] tiorari on the ground that the costs in the former suit had not been paid. Judgment reversed. All the Justices concur, except Fish, O. J., absent.