GA Code § 10-7-48 (2021)
2021 Georgia Code|Title 10 - Commerce and Trade|Chapter 7 - Suretyship|Article 3 - Rights of Surety Against Principal, Cosureties, and Third Persons|§ 10-7-48. Control of Execution and Judgment by Surety - When Sued Separately

 If the surety is sued separately from his principal, on payment by him of the judgment against him, he shall be entitled to control the judgment and execution against his principal in the same manner as if the judgment and execution were joint; and, if he does not appear as surety in the judgment against him, he may give notice and make the proof and obtain the control in the same manner as provided in cases of joint judgments.   (Laws 1850, Cobb's 1851 Digest, p. 600; Code 1863, § 2146; Code 1868, § 2141; Code 1873, § 2168; Code 1882, § 2168; Civil Code 1895, § 2987; Civil Code 1910, § 3559; Code 1933, § 103-309.)   Cross references.   - Proving suretyship, §§ 10-7-45 and10-7-46.   JUDICIAL DECISIONS   Independent remedies provided surety.    - Former Civil Code 1910, §§ 3551, 3553, 3559, and 3560 were remedies to which the surety can resort for the surety's protection, independently of any voluntary action by the creditor. McMillan v. Heard Nat'l Bank, 19 Ga. App. 148, 91 S.E. 235 (1917).   Separate action against surety.    - Surety may be sued separately from the surety's principal under this section. Amos v. Continental Trust Co., 22 Ga. App. 348, 95 S.E. 1025 (1918); Stanfield v. McConnon & Co., 25 Ga. App. 226, 102 S.E. 908 (1920); Wesley v. Lewis Bros., 33 Ga. App. 783, 127 S.E. 660 (1925).   Principal and surety are joint and several obligors, although obligation is joint in form.    - If an obligation, joint in form, is executed by one party as principal and another as surety, they are to be deemed joint and several obligors, since by former Civil Code 1910, § 3539 the obligation of the surety is accessory to that of the principal. Smith v. Moore, 45 Ga. App. 708, 165 S.E. 765 (1932).   Obligation on which one party is maker and another is accommodation endorser.    - An obligation in the form "we promise to pay" but signed by one party as maker and endorsed by another as an accommodation endorser is a joint and several obligation, since the endorser is a mere surety. Smith v. Moore, 45 Ga. App. 708, 165 S.E. 765 (1932).    Holder of a joint and several note may sue the obligors jointly or severally or sue any one of the signers. On such an obligation the holder may sue either the principal or the surety by virtue of former Civil Code 1910, §§ 3553 and 3559. McMillan v. Heard Nat'l Bank, 19 Ga. App. 148, 91 S.E. 235 (1917); Johnson v. Georgia Fertilizer & Oil Co., 21 Ga. App. 530, 94 S.E. 850 (1918); Cone v. American Sur. Co., 29 Ga. App. 676, 116 S.E. 648 (1923); Bank of Madison v. Bell, 30 Ga. App. 458, 118 S.E. 439 (1923); McKibben v. Fourth Nat'l Bank, 32 Ga. App. 222, 122 S.E. 891 (1924); Burson v. Shields, 160 Ga. 723, 129 S.E. 22 (1925).    The holder of a joint and several note may sue the principal and surety jointly, or at the holder's option the holder may sue either the principal or surety alone. Hicks v. Bank of Wrightsville, 57 Ga. App. 233, 194 S.E. 892 (1938).   Judgment against surety is valid without serving principal.    - As a surety may be sued separately from a principal, the fact that service was not perfected upon the principal debtor to whom the goods were furnished would not affect the validity of the judgment properly obtained against the surety. Wesley v. Lewis Bros., 33 Ga. App. 783, 127 S.E. 660 (1925).   Judgment may be revived although no service or judgment had against principal.    - When a proceeding is brought to revive a dormant judgment rendered against a surety on a joint and several note and the defendant objects to the revival of such judgment on the ground that the defendant's liability had been increased and that the defendant had been discharged from liability thereon because no judgment was rendered against the principal on the note, although no service of the suit was had on the principal, it was error for the judge to refuse to revive the judgment for that reason. Hicks v. Bank of Wrightsville, 57 Ga. App. 233, 194 S.E. 892 (1938).   Execution may be issued against surety alone on joint judgment.    - Insofar as an affidavit of illegality asserts the defense that the execution did not follow the judgment, since it was issued against the surety alone, while the suit and the judgment were against another as principal and the surety only as security, and that the execution is therefore void, because the defendant was thereby deprived of the defendant's right to control the execution against the principal, the affidavit of illegality is without merit. Assuming that the better practice would have been - if this ground was sustained by the record in the proceeding - to have issued a single fi. fa. against both the principal and the surety, describing them respectively as such, the fact that a separate fi. fa. was issued against the surety without describing the surety as such would not deprive the surety of the rights accorded the surety by former Civil Code 1910, §§ 3556 through 3559 (see now O.C.G.A. §§ 10-7-45 though10-7-48), against the surety's principal, or render the execution void. Fowler v. King, 29 Ga. App. 500, 116 S.E. 54 (1923).   Pleading against endorser need not allege relationship to notes.    - In view of former Civil Code 1910, §§ 3541, 3553, and 3559 (see now O.C.G.A. §§ 10-7-4,10-7-42, and10-7-48), relative to sureties, the plaintiff's pleading in an action against an endorser alleging that the plaintiff was the owner and holder of the notes sued on in due course, bona fide and for value, states a cause of action and is not subject to dismissal for failure to allege the defendant's relationship to the notes and to the other parties to the notes. Meldrim v. Peoples Bank, 28 Ga. App. 294, 111 S.E. 76 (1922).    Cited in Hunter v. Burson, 168 Ga. 59, 147 S.E. 53 (1929); Woodward v. La Porte, 181 Ga. 731, 184 S.E. 280 (1936).   RESEARCH REFERENCES   Am. Jur. 2d.   - 74 Am. Jur. 2d, Suretyship, § 119 et seq.   ALR.    - Right of surety or his privies to require creditor to resort to security given by principal before enforcing security given by surety, 37 A.L.R. 1262.    Right to and form of judgment against one discharged in bankruptcy in order to sustain attachment or garnishment or to perfect a right of action against one secondarily liable as surety on a bond given to dissolve the same, 81 A.L.R. 81.