Willis v. Bivins

Hall, Justice.

The question in this case is simple and single. Can the court, on the application of the plaintiff in a distress warrant, to which a counter-affidavit was filed, enter judgment nuno pro tuno against the defendant’s sureties after a lapse of several years, when the judgment was entered by the presiding judge without the verdict of a jury, in pursuance of an arrangement entered into between the plaintiff and defen dant without the knowledge or consent of the sureties ?

1. We are of opinion that this cannot be done, and that there was error in so deciding. The sureties obligated themselves to pay “ the eventual condemnation money” (Code, §1083); that is to say, they bound themselves to pay whatever amount might be found against their principal by the jury, upon the trial of the issue made by the counter-affidavit. This statute is positive that the issue thus formed “ shall be tried by a jury as provided for in the trial of claim cases.” Code, ut sup., and citations. There can be no alteration of the terms and conditions to which the sureties agreed, without their consent; such an alteration makes a different contract from that into which they entered, and is a novation which, without their consent, discharges the sureties. Code, §2153. A release or compounding with one surety will discharge his co-surety (/A, §2152); and a fortiori where the creditor releases or compounds with the principal, will this exonerate the sureties; indeed, any act of the creditor, either before or after judgment against the principal, which injures the surety or increases his risk, or exposes him to.greater liability, will discharge him. Id., §2154.

2. These considerations are decisive of the motion.made; but were it not so, we are unable to perceive any error or omission in the judgment rendered, which entitles the plaintiff to have it amended, or to have another and fuller judgment rendered at a subsequent term of the court nuno pro tuno. There is no mistake in it as originally entered; *749it seems to be in accordance with the understanding between the parties thereto, and it was intended to bind nobody but them; had it not been so understood by the court, he would not, without the intervention of a jury, have awarded it. Truett vs. The Justices, etc., 20 Ga., 102, 104; Pitman vs. Lowe, 24 Id., 429.

Judgment reversed.