Opinion
34779.
DECIDED OCTOBER 30, 1953.
Action on promissory note. Before Judge Paschall. Gordon Superior Court. May 25, 1953.
H. L. Barnett, Y. A. Henderson, Maddox Maddox, for plaintiff in error.
Beverly Langford, Matthews, Maddox Bell, contra.
1. A contract on the back of a promissory note, signed by one other than the payee thereof and in the following words, "For value received, the endorser or endorsers on this note hereby guarantee the payment of the same at maturity, or at any time thereafter, with interest at the rate of 8 percent per annum until paid, waiving demand, notice of non-payment, and protest," prima facie imports a contract of guaranty. Baggs v. Funderburke, 11 Ga. App. 173 ( 74 S.E. 937); Paris v. Farmers Merchants Bank, 143 Ga. 324 ( 85 S.E. 126); Rawleigh Co. v. Salter, 31 Ga. App. 329 ( 120 S.E. 679); Etheridge v. Rawleigh Co., 29 Ga. App. 698 ( 116 S.E. 903); Maril v. Boswell, 12 Ga. App. 41 ( 76 S.E. 773).
2. Where, in an action on a promissory note, bearing the endorsement indicated in division 1, brought by the payee in such note against the maker and the endorser jointly, there is no allegation that the endorser signed in any capacity other than that indicated by the endorsement, the suit will be construed as an effort to sue the maker and guarantor together in one action; and, as a guarantor cannot be joined in the same suit against the principal debtor ( Etheridge v. Rawleigh Co., supra, and the numerous cases there cited), a proper demurrer to the petition on that ground is improperly overruled.
3. Since the demurrer to the petition should have been sustained, as indicated in division 2, all further proceedings in the case were nugatory.
Judgment reversed. Gardner, P. J., and Townsend, J., concur.