In all cases the endorser may be sued in the same action and in the same county with the maker or drawer or acceptor.
(Laws 1826, Cobb's 1851 Digest, p. 594; Code 1863, § 2732; Code 1868, § 2740; Code 1873, § 2782; Code 1882, § 2782; Civil Code 1895, § 3691; Civil Code 1910, § 4283; Code 1933, § 14-1803.)
Law reviews.- For note discussing problems with venue in Georgia and proposing statutory revisions to improve the resolution of venue questions, see 9 Ga. St. B. J. 254 (1972).
JUDICIAL DECISIONS
Former exception as to state-chartered banks.
- Section originally excepted notes to be negotiated or deposited with state-chartered banks for collection. Beckwith v. Carleton & Co., 14 Ga. 691 (1854).
Permitting joint suit changed law merchant.
- Suit against the maker and endorser in one action is entirely of statutory origin. A suit against the maker and endorser was unknown to the law merchant, under which it was necessary to obtain a judgment against the maker before the liability of the endorser was established. Wilson v. Exchange Bank, 122 Ga. 495, 50 S.E. 357, 69 L.R.A. 97, 2 Ann. Cas. 597 (1905).
Formerly, section not applicable to bills of exchange.
- Prior to adoption of what is now the state Constitution, while the endorser and maker of a promissory note living in different counties may have been joined in the same action, this rule was not applicable to bills of exchange. Vinson v. Platt & McKenzie, 21 Ga. 135 (1857); Cox v. Mechanics' Sav. Bank, 28 Ga. 529 (1859).
Joinder of principal and guarantor.
- Under the state Constitution when the contract signed by the defendant was one of guaranty, not endorsement, one cannot be sued jointly with the principal, but a separate suit must be entered against each in the county of one's residence. Geiser Mfg. Co. v. Jones & Toole, 90 Ga. 307, 17 S.E. 81 (1892); Georgia Cas. Co. v. Dixie Trust & Sec. Co., 23 Ga. App. 447, 98 S.E. 414 (1919).
Joinder of maker and endorser.
- Maker of a note and the one who endorses the note, "to be liable in the second instance," cannot be sued together in the same action. Bartlett v. Byers, 35 Ga. 142 (1866).
Joinder of maker and one who promised to become joint maker.
- If one promised to become the joint maker of a note with another but fails to do so, one cannot be joined with the maker in an action in the county of such maker, if one lives in a different county. Adams v. Williams, 125 Ga. 430, 54 S.E. 99 (1906).
Joinder of joint makers or maker and endorser.
- When one signs one's name on the face of a note with the word "endorser" thereafter, one is either a joint maker or an endorser and may be sued with the other maker. McLendon v. McLendon, 61 Ga. 110 (1878).
Endorser may prove different relationship.
- When one signs one's name on the back of a nonnegotiable note in blank one is an ordinary endorser and not a guarantor and is, therefore, suable in the same action with the maker in the county of the latter's residence. Such endorser may plead and prove, however, that according to the intention and agreement of the parties one's relationship with the paper was not that of an endorser. Saussy & Huxford v. Weeks, 122 Ga. 70, 49 S.E. 809 (1905). See Walker v. Carpenter, 5 Ga. App. 427, 63 S.E. 576 (1908).
Defendant sued in two capacities.
- Defendant may be sued in the same action as an executor of the maker of a promissory note and as an individual endorser. Roark v. Turner, 29 Ga. 455 (1859).
Joinder drawer and endorser may be joined without acceptor.
- Drawer and the endorser may be sued together without joining the acceptor. If the suit is against such parties the parties should be so described in the plaintiff's pleading, but the failure to do so may be cured by amendment when there is enough set forth to amend by. Ware v. City Bank, 59 Ga. 840 (1877).
Acceptor of bill of exchange may sue drawer and accommodation endorser in the same action in the county of the drawer. Ross v. Saulsbury, Respess & Co., 52 Ga. 379 (1874).
Effect of bankruptcy of maker.
- If there is a suit against maker and endorser, the suit will not be stayed upon the application of the endorser because of the pending of bankruptcy proceedings against the maker. Johnson v. Waxelbaum Co., 1 Ga. App. 511, 58 S.E. 56 (1907).
Maker's right to be sued in county of residence.
- As a general rule where the endorser and maker reside in different counties, suit may be brought on the note in either county, but the maker of a note cannot be deprived of one's constitutional right to be sued in the county of one's own residence by an endorsement secured by the payee without the knowledge and consent of the maker and for the sole purpose of conferring jurisdiction upon the courts of the county of the endorser's residence. Arnold v. Atlanta Oil & Fertilizer Co., 11 Ga. App. 581, 75 S.E. 900 (1912).
Joint suit must be in county of drawer's residence.
- If the drawer of a check and the endorsers thereon are residents of different counties, a joint suit against the drawer and the endorsers must be brought in the county of the drawer's residence, in the absence of a waiver by the drawer of jurisdiction over the drawer's person. Pioneer Prods., Inc. v. Sinclair, 92 Ga. App. 95, 88 S.E.2d 43 (1955).
Court in county of endorsers' residence lacks jurisdiction of nonresident drawer.
- If a check was drawn by the defendant corporation incorporated in one county and having and maintaining an office and place of business only in another county, payable to the order of the endorsers, a partnership composed of partners resident in a third county, and plaintiff instituted suit upon the check against the drawer and the endorsers in a city court in the third county, that court was without jurisdiction of the defendant drawer. Pioneer Prods., Inc. v. Sinclair, 92 Ga. App. 95, 88 S.E.2d 43 (1955).
Residence does not confer jurisdiction if suit otherwise barred.
- If suit against two makers of a promissory note was barred by reason of a former recovery, the maker's residence did not confer jurisdiction upon the court of the county in the subsequent suit against the other makers and endorsers. Fullington v. Killen, 65 Ga. 575 (1880).
RESEARCH REFERENCES
Am. Jur. 2d.
- 12 Am. Jur. 2d, Bills and Notes, § 397 et seq.
C.J.S.- 10 C.J.S., Bills and Notes; Letters of Credit, § 257.
ALR.- Liability of endorser, other than payee or transferee, of nonnegotiable instrument, 18 A.L.R.3d 647.