Mulling v. Bank of Cobbtown

Bell, J. 1. An accommodation indorser is a surety. Civil Code (1910), § 3541. A principal and a surety are joint and several promisors. Heard v. Tappan, 116 Ga. 930 (1) (43 S. E. 375). An execution against them may proceed against the property of either at the election of the plaintiff. Williams v. Kennedy, 134 Ga. 339 (3) (67 S. E. 821); Bank of LaFayette v. Wardlaw, 20 Ga. App. 741 (4) (93 S. E. 236). 2. Where property is levied upon to satisfy an execution against joint makers and a surety, the fact that the advertisement of the sale of the property “sets forth that said execution is only against” the person who was surety is no ground for arresting the process by affidavit of illegality. Fitzgerald Granitoid Co. v. Alpha Portland Cement Co., 15 Ga. App. 174 (3) (82 S. E. 774). 3. Nor is it a ground of illegality that the defendant surety was not notified of the impending levy and was given no opportunity to point out property either in his possession or in the .possession of one of the [56] principals in the judgment. Civil Code (1910), § 6028; Douglas v. Singer Co., 102 Ga. 560 (2) (27 S. E. 664). Decided October 16, 1926. H. H. Elders, for plaintiff in error. Anderson & Trapnell, contra. 4. “The provision of the statute as to the giving of notice of levy to the tenant in possession is merely directory, and the failure to give such notice does not render the levy ipso facto void. Solomon v. Peters, 37 Ga. 251 (92 Am. D. 69); Cox v. Montford, 66 Ga. 62 (3). The levy not being void through the failure of the sheriff to perform this ministerial duty, this irregularity affords no ground for staying the execution by an affidavit ol illegality.” Banks v. Giles, 20 Ga. App. 97 (2) (92 S. E. 651). Judgment affirmed. Jenkins, P. J., and Stephens, J., concur.