In petition for rehearing it is contended that in the opinion and judgment filed herein on September 11, 1942, we departed from the rule stated in Nelson, et al., v. Ziegfield,
"Where the declaration and the proof show that the obligation upon which suit was brought was the joint obligation of the defendant and another, the obligation being joint, the action to enforce the obligation must *Page 333 be joint. Proof of a joint obligation will not support an action against one of the joint obligors wherein the plaintiff alleges a several or single liability against such joint obligor."
We have not departed from that holding in the instant case. The principle of law there involved is not yet presented. This was a chancery suit and our judgment entered, supra, is that "The Order and Decree dismissing the amended bill of complaint is reversed and the cause remanded with directions that the same be transferred to the law side of the court for further proceedings in accordance with law and the rules of practice."
Under our procedure, when this case is transferred to the law side of the court a declaration will be filed and the issues will be therein presented. Whether the plaintiff's declaration will be sufficient or not we do not look into the future to determine.
Petition for rehearing denied.
BROWN, C. J., WHITFIELD, BUFORD, and ADAMS, JJ., concur.
