Opinion
Action by S. Luke Pettit against the Geo. A. Rheman Company, Incorporated. On defendant's motion to make Sun Insurance Office, Limited, a party plaintiff.
Motion denied.
Smith, Smith & Bloodworth, of Atlanta, Ga., for plaintiff.
William A. Mitchell, Jr., Frank C. Tindall, and Brandon, Hynds & Tindall, all of Atlanta, Ga., for defendant.
UNDERWOOD, District Judge.
Defendant's motion in above case to make Sun Insurance Office, Ltd., a party plaintiff in this case read and considered and evidence heard.
This motion was only made after all parties had announced ready for trial, a jury stricken, and the trial begun, although defendant had notice of all the facts alleged many months prior to the presentation of this motion.
It appears from the evidence that Sun Insurance Office, Ltd., loaned to plaintiff the sum of $3,493.38 upon a loan agreement in the same form as that upheld by the Supreme Court of the United States in the case of Luckenbach v. W. J. McCahan Sugar Co., 248 U.S. 139, 39 S.Ct. 53, 63 L.Ed. 170, 1 A.L.R. 1522.
It further appears that by agreement between them, plaintiff and the Sun Insurance Office, Ltd., have agreed that their respective interests in the event or recovery are five-twelfths and seven-twelfths thereof.
In order to grant said motion, it will be necessary, over plaintiff's objection, to declare a mistrial and have the Sun Insurance Office, Ltd., served, if service can be made within this jurisdiction, thereby causing embarrassment, delay and expense to plaintiff.
The motion, therefore, is overruled, it appearing to the Court that even if defendant had a right to make said Sun Insurance Office, Ltd., an involuntary plaintiff, this right was lost by failure to exercise same at the proper time, and that the overruling of the motion comes within the discretion given the Court under Rule 20(b), Rules of Civil Procedure, 28 U.S.C.A. following section 723c.