Opinion
38569.
DECIDED DECEMBER 5, 1960.
Complaint. Fulton Civil Court. Before Judge Camp. August 11, 1960.
Preston L. Holland, for plaintiff in error.
Smith, Kilpatrick, Cody, Rogers McClatchey, Scott Walters, Jr., Harry J. Mehre, Jr., Wm. W. Cowan, contra.
In an action at law, unless expressly provided, there is no provision of law authorizing a defendant to make another a party defendant to the action.
DECIDED DECEMBER 5, 1960.
On February 7, 1958, A. P. Steerman filed suit in the Civil Court of Fulton County against T. Marion Smith, d/b/a T. Marion Smith Transfer Storage Company. The defendant filed his answer and demurrers on February 28, 1958, and on March 21, 1958, the plaintiff filed his demurrers. Thereupon, the court sustained two of the plaintiff's demurrers and the defendant's demurrers, and gave the parties 10 days in which to amend. The defendant died on August 8, 1958, and on March 30, 1959, the attorney for the defendant moved that the action be stayed until proper parties could be added. The court granted the motion, and on April 1, 1959, the plaintiff petitioned the court to make the administratrix of the estate of the defendant a party to the action. The court issued its rule nisi directed to the administratrix of the estate of the defendant requiring her to show cause why she should not be made a party to the action. The administratrix filed her answer praying that a third party, W. Lane Crocker, be made a party to the action and alleging that she had entered into a contract with Crocker wherein he agreed to pay all accounts payable of a certain business, and that any obligation on the part of the defendant was the obligation of W. Lane Crocker. The court then issued its order directing Crocker to show cause why he should not be made a party to the action. On November 12, 1959, Crocker having failed to appear, the court dismissed the action for want of prosecution. The attorneys for the plaintiff and the defendant administratrix requested reinstatement of the action but it appears that the defendant Crocker was given no notice of reinstatement. On February 20, 1960, a judgment was entered dismissing the action as to the defendant administratrix and a judgment was rendered against the defendant Crocker in the amount of $833 plus interest and costs for the reason of "his failure to answer a rule nisi being made a party defendant hereby and thereby." The defendant Crocker filed a motion to set aside the judgment on the grounds that the original defendant could not cause another to be made a party defendant under the facts herein alleged. Thereafter, on July 27, 1960, the court sustained the defendant Crocker's motion and vacated and set aside the judgment. The plaintiff filed his motion for rehearing which was overruled. To this ruling the plaintiff excepts.
Code § 81-1305 provides: "In all suits by or against partners, or where any two or more persons shall sue or be sued in the same action, and the name of any person who ought to be joined in such action as plaintiff or defendant shall be omitted, the omission may, on motion, be supplied by adding the proper party instanter." This section does not mean that one defendant can make a defendant another party, who is liable over to him. The facts in the case of Frost v. Smith, 148 Ga. 840 ( 98 S.E. 471) relied on by the plaintiff, are not comparable to the facts of the present case. In the Frost case, Frost was the administrator of the estate of his brother who before his death had been the original defendant. By amendment the administrator was made a party individually. In that case, however, Frost had attempted to set up his individual interest in land which was the subject of the earlier litigation against the estate.
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." Directly in point and controlling the instant case is the case of Hamner v. Johnson, 100 Ga. App. 1 ( 109 S.E.2d 881), wherein it was stated: "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."
The transfer of the case to this court by the Supreme Court precludes the application of the equity rule as to making parties. Therefore, the court did not err in sustaining the defendant's motion to set aside the judgment and in overruling the plaintiff's motion for rehearing.
Judgment affirmed. Nichols and Bell, JJ., concur.