GA Code § 9-13-78 (2021)
2021 Georgia Code|Title 9 - Civil Practice|Chapter 13 - Executions and Judicial Sales|Article 4 - Satisfaction or Discharge of Judgment and Execution|§ 9-13-78. Control of Execution After Payment - by Joint Debtor

 When judgments have been obtained against several persons and one of them has paid more than his just proportion of the same, he may have full power to control and use the execution as securities in execution control the same against principals or cosureties by having this payment entered on the execution issued to enforce the judgment, and he shall not be compelled to bring an action against the codebtors for the excess of payment on the judgment.   (Ga. L. 1871-72, p. 54, § 1; Code 1873, § 3599; Code 1882, § 3599; Civil Code 1895, § 5376; Civil Code 1910, § 5971; Code 1933, § 39-608.)   Cross references.   - Right to contribution among joint trespassers; effect of settlement, § 51-12-32.   JUDICIAL DECISIONS   Remedy not exclusive.    - There is nothing in this section to indicate that the legislature intended to make this statutory remedy exclusive and, thus, deprive a person of the right to pursue a preexisting accredited method of enforcing contribution from a joint defendant. City of Rome v. Southern Ry., 50 Ga. App. 185, 177 S.E. 520 (1934).    This section is but cumulative remedy for enforcing contribution. City of Rome v. Southern Ry., 50 Ga. App. 185, 177 S.E. 520 (1934); Powell v. Barker, 96 Ga. App. 592, 101 S.E.2d 113 (1957).    This section does not preclude joint defendant from setting up agreement with party who paid, that the defendant's note should be taken for the defendant's part. Babb v. Brumby, 141 Ga. 792, 82 S.E. 249 (1914).    This section applies to judgments against partners based on service upon all of the partners. Higdon v. Williamson, 10 Ga. App. 376, 73 S.E. 528 (1912).    Word "may" is ordinarily permissive, and not mandatory. Furthermore, the phrase "and shall not be compelled to sue," (now "to bring an action") etc., lends countenance to the conclusion that "may" is used in the statute in the term's ordinary signification. City of Rome v. Southern Ry., 50 Ga. App. 185, 177 S.E. 520 (1934).   Equal extension to actions ex contractu and ex delicto.    - Right of contribution extends equally to actions ex contractu and actions ex delicto, when all are equally bound to bear the common burden, and one has paid more than one's share. City of Rome v. Southern Ry., 50 Ga. App. 185, 177 S.E. 520 (1934).   Showing of payment of debt in full unnecessary.    - It is unnecessary to show that common debt has been paid in full either by the plaintiff or by any other person. In some decisions there are expressions which might imply that the whole debt must be paid before an action for contribution will lie, but such was not the rule at common law, nor is there any such requirement under this section. Herrington v. Wimberly, 177 Ga. 536, 170 S.E. 670 (1933).   Failure to enter amount paid on execution precludes contribution.    - When an execution issues against two defendants, and is afterwards by the plaintiff in fi. fa. transferred to one of the defendants for "value received," and the transfer is endorsed upon the execution, and there is no entry upon the execution of any amount paid thereon by such defendant, such action amounts to a settlement of the execution, and such defendant taking the transfer of the execution cannot enforce the execution against the other defendant to compel a contribution; nor would the case be altered by the fact that the defendants were partners and the execution was against the partnership. Easterling v. Adamson, 28 Ga. App. 257, 110 S.E. 757 (1922); D.G. Bland Lumber Co. v. Perkins, 46 Ga. App. 401, 167 S.E. 707 (1933).    If fieri facias is paid off by joint defendant, that defendant is entitled to have it revived on becoming dormant, in the name of the plaintiff for the defendant's use. Huckaby v. Sasser, 69 Ga. 603 (1882).    Transferee of joint debtor paying off execution would have like right to enforce execution against co-obligor as would the joint debtor personally. O'Bryan Bros. v. Neel, 84 Ga. 134, 10 S.E. 598 (1889); Register v. Southern States Phosphate & Fertilizer Co., 157 Ga. 561, 122 S.E. 323 (1924).    Under this section, justice of peace is collecting officer as to debts sued in that court, and may make, upon an execution issued from the Supreme Court against joint defendants, the entry of payment by one of them, which is required in order that the paying defendant may control the judgment against the others. Higdon v. Williamson, 10 Ga. App. 376, 73 S.E. 528 (1912).    Payment made to clerk of superior court on judgment is not good as payment against plaintiff. Bank of Georgetown v. Ault & Ault, 31 Ga. 359 (1860); Wilcher v. Williams, 33 Ga. App. 797, 127 S.E. 795 (1925).   Applicability.    - Trial court erred in entering summary judgment for a creditor in a debtor's suit seeking to quiet title as: (1) a co-debtor paid the creditor's note in full, which extinguished the debt; (2) once the note was paid, the collateral should have been released; (3) the creditor could not assign the note to the co-debtor; (4) the co-debtor had only a right to contribution as there was no indication that the co-debtor was a surety under the agreement with the debtor; and (5) O.C.G.A. § 9-13-78 was inapplicable as the statute pertained to the codefendants against whom a judgment had been obtained. Johnson v. AgSouth Farm Credit, 267 Ga. App. 567, 600 S.E.2d 664 (2004).   Interest award reversed.    - Award of interest for a client against an attorney from the date that the client satisfied an underlying judgment against the client, the client's son, and the attorney had no legal basis and was reversed; it had been established that the client, the client's son, and the attorney were joint tortfeasors and while O.C.G.A. § 10-7-51 authorized the award of interest running from the date of a cosurety's payment of a joint obligation, it applied to contribution actions arising from joint instruments executed by the sureties, not to joint tortfeasors. The issue was not controlled by O.C.G.A. § 9-13-78 as it provided a method of enforcing contribution from a joint defendant and it did not purport to control an award of interest; O.C.G.A. § 7-4-12 provided that all money judgments bore post-judgment interest from the date of entry. Gerschick v. Pounds, 281 Ga. App. 531, 636 S.E.2d 663 (2006), cert. denied, No. S07C0191, 2007 Ga. LEXIS 95 (Ga. 2007).    Cited in Miller v. Perkerson, 128 Ga. 465, 57 S.E. 787 (1907); Wallace v. Boddie, 138 Ga. 30, 74 S.E. 756 (1912); Johnson v. Washington, 152 Ga. 635, 110 S.E. 889 (1922); Autry v. Southern Ry., 167 Ga. 136, 144 S.E. 741 (1928); City of Rome v. Southern Ry., 47 Ga. App. 489, 170 S.E. 695 (1933); Chapman v. Lamar-Rankin Drug Co., 64 Ga. App. 493, 13 S.E.2d 734 (1941); Wilson v. Fulton Metal Bed Mfg. Co., 88 Ga. App. 884, 78 S.E.2d 360 (1953); Wages v. State Farm Mut. Auto. Ins. Co., 132 Ga. App. 79, 208 S.E.2d 1 (1974).   RESEARCH REFERENCES   C.J.S.   - 33 C.J.S., Executions, § 202.   ALR.    - Payment of entire claim of third person as condition of subrogation, 9 A.L.R. 1596; 32 A.L.R. 568; 46 A.L.R. 857; 53 A.L.R. 304; 91 A.L.R. 855.    Right of one co-judgment debtor who pays judgment to be subrogated thereto as against the other co-judgment debtors, 157 A.L.R. 495.