Music v. Waycross Coca-Cola Bottling Co.

Carlisle, J. 1. Where, on the trial of a joint action (not a joint cause of action) against two defendants, residents of different counties, as joint tortfeasors, the trial court, on motion of the nonresident defendant, grants a nonsuit as to such nonresident defendant; and then, without any objection by the plaintiff or her counsel, the trial court directs a verdict for the plaintiff for the full amount for which suit was brought and judgment is entered against the resident defendant and signed by counsel for the plaintiff and the trial court, the joint action against the two defendants has come to an end by virtue of the plaintiff’s election to proceed solely against the resident defendant, which election is made manifest by the plaintiff’s acquiescence in, or failure to object to, the proceeding against the resident defendant, and it would be a futility for this court to review the judgment of nonsuit. Vandiver v. Georgia Ry. & Power Co., 38 Ga. App. 59, 60 (143 S. E. 455); Ellis v. Almond, 115 Ga. 333 (41 S. E. 642); Poole v. Southern Ry. Co., 34 Ga. App. 290 (129 S. E. 297); McConnell v. Frank E. Block Co., 26 Ga. App. 550 (106 S. E. 617); McRae v. Gulf Refining Co., 43 Ga. App. 422 (159 S. E. 133); Veal v. Beall, 189 Ga. 31 (5 S. E. 2d 5), and citations. Accordingly, where, as here, such facts appear, this court will not [841] review the judgment granting the nonsuit. The present case differs from that of Consolidated Realty Investments v. Gasque, 203 Ga. 790 (48 S. E. 2d 510), in this respect: in the Gasque case a verdict was directed against the petition as to one of the defendants, and simultaneously a mistrial was declared as to the other defendants, which, of course, left the case as to the other defendants still pending against them and was not a final determination of the case. In the present case, the plaintiff made no objection to the direction of the verdict, and even went so far as to enter judgment against the resident defendant. The judgment of nonsuit must be and is affirmed. Gardner, P. J., and Townsend, J., concur. Decided April 15, 1955. Barrie L. Jones, for plaintiff in error. Bennett, Pedrick & Bennett, Larry E. Pedrick, contra. Judgment affirmed.