
    CRAYTON v. FOX, executrix.
    Where an affidavit of illegality has been filed by two defendants to the levy of a fi. fa. issued upon a judgment against them, founded upon a suit on a joint and several promissory note of which they were makers, on the ground that neither of defendants was served, and where the uncontra-dicted evidence upon the trial of this issue shows that one of the defendants had been duly served and the other had not, it was not error for the ■court to direct a verdict that the fi. fa. proceed only as to the party thus ■shown to have been duly served.
    Submitted March 21,
    Decided April 19, 1899.
    Illegality. Before Judge Reese. Hancock superior court February term, 1898.
    
      William H. Burwell, for plaintiff in error.
   Lewis, J.

A judgment was rendered in the county court of Hancock county in favor of Ellen Fox, executrix, against George and Charlie Crayton. This judgment was founded upon a suit on a joint and several promissory note signed by both defendants, in which note it was stated that “we or either of us promise to pay,” etc. An execution was issued and levied on certain property as the property of the defendants. To this levy an affidavit of illegality was filed by both defendants, on the ground that they had not been served; and a return of the sheriff on the original writ, showing service, was traversed. The case was appealed to the superior court, and on the trial'there it appeared from the testimony that the sheriff had left two copies of the writ at a certain house which' he presumed was the home of both defendants, but the testimony showed it was the home of only one defendant, and not the other. The court instructed a verdict in favor of the plaintiff' against the defendant who was served, and in favor of the illegality so far as the other defendant was concerned, and directed that the fi. fa. proceed as to the defendant duly served. A motion for a new trial was made by the defendant against whom the verdict was directed, in which error is. assigned on this-direction given by the court. To the judgment of the court overruling the motion for a new trial the movant excepts.

Under the terms of the contract sued on in the county court,, manifestly the payee or holder of the note had the discretion-to sue either one of the makers or to bring an action against-both. It follows from this that having brought suit against both, it was at his discretion pending the action to dismiss the-suit as to one and proceed alone against the other. In the case of Stanford v. Bradford, 45 Ga. 97, it was decided that “ In a joint suit against several, if one be not served, the plaintiff' may dismiss as to the one not served; and if he go on to the jury and get a verdict, the verdict is good against those served, though there be a failure to dismiss against the defendant not. served. The defect is a mere irregularity, and .does not make the judgment void.” We do not think, therefore, that the defendant served, even if he had appeared in court and so pleaded, had the right to object to the case proceeding to judgment against him, simply because his codefendant had not been served. But conceding, for the sake of the argument, that he had such: right, he did not avail himself of it, and is now seeking to go behind the judgment by setting up a defense which he could have availed himself of before the rendition of the judgment. Under § 4742 of the Civil Code, this can not be done by an affidavit of illegality.

Judgment affirmed.

All the Justices concurring.  