Opinion
37770.
DECIDED JULY 16, 1959.
Action for damages. Gwinnett Superior Court. Before Judge Clinkscales. January 8, 1959.
J. Ray Merritt, for plaintiff in error.
Wheeler, Robinson Thurmond, Emory F. Robinson, Joseph E. Cheeley, contra.
In an action at law, instituted by the plaintiff against two defendants, where one of the defendants is stricken by plaintiff's amendment, a court is without authority to make the stricken defendant a codefendant on application of the remaining defendant, and the court did not err in sustaining the demurrer of the plaintiff to the remaining defendant's amendment to his answer seeking to have the stricken defendant again made a party defendant.
DECIDED JULY 16, 1959.
This case was transferred to this court by the Supreme Court ( Hamner v. Johnson, 215 Ga. 14, 108 S.E.2d 687). See that case for a partial statement of the pleadings. After E. E. Robinson had been stricken as a party defendant by the plaintiffs the defendant Arnold Hammer filed an amendment to his answer, which was allowed subject to demurrer. The amendment is as follows:
"14. Defendant, E. E. Robinson, who was a defendant in the suit filed in this case identified as Case No. 4504 resides in Gwinnett County, Georgia, and is subject to the jurisdiction of this court. 15. That all times referred to herein, the defendant Arnold Hamner was cutting said timber heretofore described and alleged in the plaintiff's petition under the direction and express instructions of defendant, E. E. Robinson, and was cutting said timber because of the fact that a timber contract was entered into with the said E. E. Robinson dated January 5, 1955, a copy of which is hereto attached and made a part of this answer and motion and is identified as Exhibit `A'. 16. That as such, defendant Hamner, d/b/a Hamner Lumber Company cut said timber and paid defendant, E. E. Robinson $12,000 to cut said timber as shown by defendant E. E. Robinson as the true and correct lines of his said property described in said timber contract. 17. That the said defendant, Arnold Hamner, is entitled to recover his damages in the sum of $2,000 from the said defendant, E. E. Robinson. 18. That said defendant, E. E. Robinson should be made a party defendant to the cross-action of said Hamner in order that a multiplicity of suits can be prevented and that the said Hamner can, in one action, determine his claim against the said E. E. Robinson. 19. That unless this court, as a court of equity, takes jurisdiction of this matter and makes the said E. E. Robinson a party defendant to defendant's cross-action, your petitioner will be forced to try the issues herein in two separate actions at additional expense to him and the court since all of the parties are not before the court in this action. 20. That there is but one main question arising out of cutting of said timber which is subject matter of this action and that is whether defendant, Hamner, and plaintiff, Johnson, are entitled to recover from the said defendant, E. E. Robinson. 21. That unless E. E. Robinson, as the principal of Herman Johnson is made a party to this cross-action, your petitioner has no adequate remedy at law, and since there is but one question which is common to all parties equity should take jurisdiction and determine the whole matter so as to: (a) Do complete justice. (b) Prevent a multiplicity of actions. (c) Establish a right common to all parties. (d) Prevent unnecessary duplication of expense in the trial of two actions. (e) Supply a complete and adequate remedy which is not afforded by a court of law. 22. That the plaintiff show cause on a day certain why the said E. E. Robinson should not be made a party of said action, in order to do complete justice between the parties. Wherefore, defendant, Hamner, prays; (a) That plaintiff Johnson be denied as to him and that he have judgment against the said E. E. Robinson in the sum of $2,000.00, plus all costs of this action; (b) That said E. E. Robinson be made a party to defendant's cross-action and that he have judgment against the said Robinson in the sum of $2,000; (c) That an order issue directed to E. E. Robinson requiring him to appear before this court on a day certain to show cause why he should not be made a party defendant to the cross-action of Arnold Hamner. (d) That petitioner have such other and further relief as the court deems proper."
The judgment of the Supreme Court transferring this case to this court necessarily adjudicated the proposition that no equitable issue was involved in the amendment to the answer seeking to have E. E. Robinson made a party defendant either on the theory that a multiplicity of suits would be avoided or for any other reason. We know of no authority of law and none has been cited by the plaintiff in error, to the effect that in a law case such as this a party defendant could be added on petition of an existing defendant. Code § 37-1005 applies only to equity cases. The same is true as to the cases of O'Leary v. Costello, 169 Ga. 754, 758 ( 151 S.E. 487) and Roberts v. McBrayer, 194 Ga. 606, 613 ( 22 S.E.2d 165). Code § 37-1007 does not apply in this case at least by reason of the transfer of the case to this court. The provisions of Code §§ 3-401 — § 3-419, providing for the making of parties pending action, do not apply to cases like the instant one. Code § 81-1303 provides: "No amendment adding a new and distinct cause of action or new and distinct parties shall be allowed unless expressly provided for by law." The court did not err in sustaining the general demurrers to the amendment seeking to make E. E. Robinson a party defendant.
Judgment affirmed. Quillian and Nichols, JJ., concur.