Register v. Stone's Independent Oil Distributors

177 S.E.2d 92, 122 Ga. App. 335, 1970 Ga. App. LEXIS 868

• Court: Court of Appeals of Georgia
• Decided: July 13, 1970
• Docket: 44908
• Status: Published

Opinions

Eberhardt, Judge.

The issue is squarely raised as to whether the impleading of a third-party defendant under CPA § 14 (a) (Code Ann. § 81A-114 (a)) is an ancillary proceeding with its venue resting upon that of the main action, or whether it is separable and distinct from the cause of action between the plaintiff and the defendant in the main action and is essentially an independent "suit” or "case” so that it must satisfy within itself the venue requirements of our Constitution, Art. VI, Sec. XIV (Code Ann. § 2-4901 et seq.).¹ Since the claim for contribution asserted against the third-party defendants does not fall within one of the exceptions enumerated in the Constitution (Code Ann. §§ 2-4901— 2-4905), and since CPA § 82 (Code Ann. § 81A-182) provides that "This Title shall not be construed to extend or limit the jurisdiction of the courts or the venue of actions therein,” the venue requirements of the Constitution (Code Ann. § 2-4906) are not met with respect to these nonresident third-party defendants unless their impleading is an ancillary proceeding to the main action rather than a “suit” or "case” within the meaning of those terms as employed in the previously-cited constitutional provisions. In this connection it should be noted that the fact the third-party defendants could be joined as original defendants by the plaintiff under the joint-tortfeasor venue provision of the Constitution (Code Ann. § 2-4904) is not determinative of the matter, contrary to the trial court’s reasoning. If the claim asserted against co-defendants or third parties is essentially independent rather than one ancillary to the main action, it must satisfy within itself the constitutional venue requirements. Cf. Barnes v. Banks, 154 Ga. 706 (115 SE 71); Huckabee Auto Co. v. Norris, 190 Ga. 515 (9 SE2d 840, 129 ALR 913); Terhune v. Pettit, 195 Ga. 793 (25 SE2d 660). But see Roberts v. McBrayer, 194 Ga. 606 (22 SE2d 165). See also Carswell v. Macon Mfg. Co., 38 Ga. 403; Dawson v. Equitable Mortgage Co’. 109 Ga. 389, 392 (34 SE 668); Fourth Nat. Bank v. Mooty, 143 Ga. 137 (84 SE 546).

What, then, is an ancillary proceeding? It is one growing out of or auxiliary to another action or suit, or which is subordinate to or in aid of a primary action, either at law or in equity. See Black’s Law Dictionary, "Ancillary,” "Ancillary Bill or Suit,” "Ancillary Proceeding” (4th Ed. 1957). An example is the use of a garnishment proceeding which, even though considered to be a distinct suit against a separate party on a new cause of action, is denominated "ancillary to the main action.” Dent v. Dent, 118 Ga. 853 (45 SE 680). Thus in Huron v. Huron, 1 T. U. P. Chrlt. 160, "returns were made by garnishees residing in different counties, and upon motion of Davis and Berrien to enter up judgment against them for the amount of their returns, it was objected by Harris, for the garnishees, in arrest of this motion, that the third section of the attachment law was unconstitutional,² because no person could, (except in the case of joint obligors) be sued out of the county in which he resided: and these garnishees resided in the County of Richmond [while the motion for judgment was made in the pending action in the Chatham County Court].” The objection was overruled, the court stating: "The Constitution directs, that the party shall be sued in the county where he resides; but this constitutional privilege applies to original actions which clearly designate the parties, plaintiff and defendant. It does not interfere with those incidental remedies, which necessarily result from the exigencies of the original action. . . The attachment served upon [the garnishee] is therefore incidental, or auxiliary to the original action, and does not fall under the constitutional privilege given to defendants.”

Similarly, in Garvin v. Gallagher, 1 Ga. 315,³ Gallagher sued Walsh in Muscogee Superior Court, and upon his being arrested Garvin became his bail. Judgment was obtained against Walsh and execution against his body was issued, which was returned that he was not to be found. A writ of scire facias was then sued out, directed to the Sheriff of Bibb County, where Garvin resided, requiring him to appear and show cause why Gallagher should not have execution against him for the amount due on the judgment. Garvin moved to quash the scire facias on the grounds, inter alia, that he was a resident of Bibb County in which county alone he was liable to be sued and compellable to answer. The Supreme Court affirmed the overruling of this ground, stating: "We do not think scire facias against bail is such an original suit as was contemplated by the Constitution. The original suit in our judgment gave the court jurisdiction to proceed against the bail, being part of the proceedings which appertain to the original suit.” P. 316.

Perhaps one of the best examples of an ancillary proceeding is to be found in the vouchment of another to defend an action. An exhaustive discussion of this by Judge Powell is found in McArthor v. Ogletree, 4 Ga. App. 429 (61 SE 859). When the vouchee has been properly notified he may come in and defend, or he may refrain — but in either event he is bound by the result, as to the right of the plaintiff to recover and as to the amount. Code § 38-624. That proceeding, of course, requires the bringing of a second action to determine the liability over of the vouchee to the voucher since there is no procedural device available whereby the vouchee’s liability over can be determined in the plaintiff’s action against the voucher. It is interesting to note that Professor Moore, in tracing the historical background of Fed. Rule 14, from which our CPA § 14 was taken, states that although impleader is a relatively recent procedural device in many American jurisdictions, its roots go deep into the common law, striking and penetrating the vouching procedure. 3 Moore, Federal Practice 431, § 14.02 [1] (2d Ed. 1967). He goes on to point out that impleader is in great measure an effective extension of vouchment, and that the latter did not require independent jurisdictional grounds for vouching the third party into the pending action. 3 Moore, supra, pp. 683, 685, § 14.25. This is the rule in this State, for it has never been thought that independent venue or jurisdictional grounds were required over the vouchee to conclude him as to the right of the plaintiff to recover and as to the amount. Only notice was required, and thus venue or jurisdiction over the vouchee was not fundamental but ancillary to the main cause.

While the question is not free from difficulty, we conclude that, as urged by Professor Moore in the first edition of his treatise (see 3 Moore, supra, pp. 683, 685), the third-party claim under CPA § 14 should be regarded as an ancillary claim by analogy to other types of claims, particularly to vouchment which is the ancestor of third-party practice. (This position is reasserted in the second edition; see 3 Moore, supra, pp. 683, 701, §§ 14.25, 14.26). Although vouchment necessitated the bringing of a second action, this appears to be a result of the procedural inadequacy of the vouchment proceeding itself and not of a constitutional command. CPA § 14 affords a new procedural remedy whereby the procedural necessity of maintaining the second action is eliminated; and if the vouchee traditionally could be concluded as to the plaintiff’s right to recover and the amount thereof, and no independent venue or jurisdictional grounds were required to bind him as to' these two fundamental elements, it slices the salami too thin to hold that he cannot also be bound as to the third element — his liability over to the original defendant — in the same action. Under the procedure made available by CPA § 14, an original defendant may implead a third person who is or may be liable to him for all or part of the plaintiff’s claim against him. This procedure is utilized here to claim contribution from joint tortfeasors under Ga. L. 1966, p. 433 (Code Ann. § 105-2012), and an attempt is thus made to pass on to the third parties a part of the liability asserted against the original defendants. The impleaded joint tortfeasors cannot be liable on any judgment entered against the original defendants, and they can only be liable over to the third-party plaintiffs on a conditional judgment for their share of any judgment which may be entered against the third-party plaintiffs and paid by them. See 3 Moore, supra, p. 574, § 14.11; Norman, supra, p. 371. Thus no independent claim is made by the third-party plaintiffs against the third-party defendants, but only a claim for contribution in the event the third-party plaintiffs are held liable. This claim is contingent upon the outcome of the main case and is ancillary to it, and it cannot properly be regarded as a "suit” or "case” within the meaning of the venue provisions of our Constitution.

A comparison of the instant case with cases such as Barnes v. Banks, 154 Ga. 706, Huckabee Auto Co. v. Norris, 190 Ga. 515, and Terhune v. Pettit, 195 Ga. 795, supra, illustrates the distinction between ancillary and dependent claims and those which are separable and distinct from the main action and are essentially independent claims subsisting between the original defendant and the third person. In the cited cases the original defendants, who attempted unsuccessfully to maintain "cross petitions,” etc.,⁴ against nonresidents of the county where the main action was pending, sought to adjudicate subsisting controversies which were not dependent upon the main action. In Barnes, an action by a transferee on promissory notes given for the balance of the purchase price of machinery, the defendant makers of the notes filed a "cross petition” alleging breach of warranty, failure of timely delivery, and misrepresentation on the part of the nonresident payees-sellers in regard to the sale of the machinery, and sought judgment against them for the purchase money paid and for damages. Similarly, in Huckabee, the plaintiff transferee of a promissory note sued the maker, who in turn filed an "answer in the nature of a cross action” against the nonresident payee, claiming that the payee-seller had made misrepresentations of an automobile for which the notes were given in part payment. The maker alleged that after discovering the misrepresentations he took the automobile back to the payee-seller and offered to rescind the trade upon the seller restoring to him his old automobile which had been traded in as part payment, but that the seller refused and transferred the note. The defendant maker prayed judgment against the payee-seller in an amount equal to that which the transferee obtained against him, and in addition sought recovery of $450, the value of the automobile he traded in. In these cases, it seems apparent that the makers-buyers were attempting to assert subsisting claims against the nonresident payees-sellers which were maintainable irrespective of suit on the notes by the transferees, and they were not situations where the makers asserted merely that the payees were secondarily liable to them on the notes. In Terhune, an action at law for damages representing the value of stock, the defendant company holding it filed an answer "which was a petition for interpleader,” praying for injunction against a nonresident and that he be required to interplead with plaintiff'. Again this is not a "liable over” situation but an independent action brought to a head by the advent of suit by one of the claimants. In contrast to the claims asserted by defendants in these cases, which would have been maintainable by them as original plaintiffs in independent actions even though no suit were ever brought against them, the third-party claim in the instant case depends for its very existence upon the main case. As alleged in the third-party complaint: "These third party plaintiffs have a right of action against the third-party defendants and said third-party defendants are or may be liable over to these third-party plaintiffs under the following conditions: if the plaintiff obtains a verdict and judgment herein against these third-party plaintiffs, the said third-party defendants are liable over to these third-party plaintiffs for a pro rata share of said verdict and judgment, the exact amount depending upon the amount of verdict and judgment and against whom such is returned and entered.” Had suit never been brought against these third-party plaintiffs, or were the suit against them to be dismissed, or were judgment to be finally entered in their favor, no basis would exist for prosecution of their claim against the third-party defendants. This is a true case of impleader — an attempt to pass on to the third-party defendants part of the very same liability asserted against the third-party plaintiffs in the main action, with no other items of recovery being sought, as there was in Barnes and Huckabee, supra. Hence the third-party claim here has no such independent status that it can be classified as a "suit” or "case” within the meaning of our constitutional venue provisions, and accordingly those provisions have no application here.

The question we decide here, though one of first impression in this State, is not novel. Under Fed. Rule 14, the Federal courts were likewise faced with problems of jurisdiction and venue in relation to third-party practice. For example, assume that in a diversity case A, a citizen of State 1, sues B, a citizen of State 2, in A’s district in State 1. B then impleads C, also a citizen of State 2. There is thus no diversity between B and C and, unless ancillary, the third-party claim runs afoul of the limitation on the jurisdiction of the Federal courts. Similarly, if C is a citizen of State 3, there is then diversity between B and C so as to supply independent jurisdictional grounds, but, unless ancillary, the claim will fall on C’s venue objection. See Moore, supra, p. 684. The Federal courts, however, adopted the view that the third-party claim should be regarded not as an independent claim, but as one ancillary to the main claim, and that no independent venue or jurisdictional grounds were required. Moore, supra, p. 703, n. 6; p. 743, n. 4; 1A Barron & Holtzoff, Federal Practice and Procedure, p. 650, § 424; Annots., 37 ALR2d 1420, § 6; 100 ALR2d 708, § 9.

What we hold here is not to be construed as meaning that an original defendant may assert independent claims he may have against a nonresident third party under the guise of ancillary impleader. To come under this ruling, which deals with impleader only, the claim asserted by the original defendant must be a truly ancillary third-party claim. Texas, which subscribes to the ancillary proceeding view in regard to impleader and cross actions in order to prevent a multiplicity of suits, even though its venue provisions appear more restrictive than our own, recognizes the distinction between claims ancillary to the main action and those which are separable and distinct from it and are essentially independent claims existing between the original defendant and the third person. See Annot., 100 ALR2d 715 et seq. Our holding here is that in cases of truly ancillary impleader, such as in cases of indemnity, suretyship, contribution, subrogation, and breach of warranty, the third-party proceeding is not an essentially independent "suit” or "case” so that it must satisfy within itself the previously-cited venue requirements of our Constitution.

Enumerations of error 1, 2, 5 and 6 are without merit.

2. Third-party defendants urge that the complaint cannot be maintained against them because there is no specific allegation that the third-party plaintiffs and third-party defendants were joint tortfeasors with respect to the occurrence for which the original action was commenced, but that the allegations seek to place the entire blame upon Rodgers and third-party defendants.

This contention is without merit. A third-party complaint is subject to the notice-pleading provisions of CPA § 8 (a) (Code Ann. § 81A-108 (a)) and need only contain "(1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled.” The complaint should, of course, show the basis upon which the original defendant claims that the third-party defendant is liable to him for part or all of the original plaintiff’s recovery. 2 Kooman, Federal Civil Practice 227, § 314.03 (1969); 1A Barron & Holtzoff, supra, p. 697.

Without attempting to set forth the numerous recitations and allegations of the motion to bring in the third-party defendants and the third-party complaint, suffice it to say, as did the trial court, that "it cannot be held as a matter of law upon consideration of the language of the third-party complaint that the third-party defendants are not contended to be joint tortfeasors with the third-party plaintiffs.” It is clear that the basis of the claim is for contribution from joint tortfeasors, and the pleading is sufficient. Carlisle v. S. C. Loveland Co., 175 F2d 418 (CA 3); Mendenhall v. Texas Co., 15 F. R. D. 193 (D.C. Pa.). In any event we do not conceive that CPA § 14 requires an admission of liability in order for its provisions to be available. The further allegations that Rodgers and the third-party defendants were solely responsible for the injuries is mere surplusage. Sheppard v. Atlantic States Gas. Co., 167 F2d 841 (CA 3).

Central of Ga. R. Co. v. Lester, 118 Ga. App. 794 (165 SE2d 587) does not require a different result, for there and in the Federal case we relied upon the proposed third-party defendant could not be made liable over on the theory it was a joint tortfeasor because it was the employer of the original plaintiff and subject to the Workmen’s Compensation Act.

Enumerations of error 3 and 7 are without merit.

3. The final contention is that there were two collisions, the first involving Rodgers and the second involving third-party defendants, and that these successive collisions may not have produced a single injury. Thus it is argued that third-party defendants were not joint tortfeasors with either Rodgers or third-party plaintiffs.

However, it is not possible at this juncture to determine whether or not third-party plaintiffs and third-party defendants were, in fact, joint tortfeasors. As the trial court observed, it cannot now be held that the tort alleged to involve the third-party defendants is necessarily a different tort from that alleged to involve the third-party plaintiffs, but this is a matter that addresses itself to factual proof. "There must, of course, be some showing that under the applicable law the third party may be liable to the defendant. However, the allegations of the third-party complaint need not show that recovery is a certainty; the complaint should be allowed to stand if, under some construction of the facts which might be adduced at trial, recovery would be possible.” 3 Moore, supra, p. 554.

Enumerations of error 4 and 8 are without merit.

Judgment affirmed.

Bell, C. J., Jordan, P. J., Hall, P. J., Deen, Quillian and Whitman, JJ., concur. Pannell and Evans, JJ., dissent.

1 See Norman, The Georgia Civil Practice Act: Counterclaims, Cross-Claims and Third-Party Practice, 4 G. S. B. J. 355, 379, a comprehensive article dealing with the question here involved.

2 Statutory changes make summons of garnishment returnable to the court of the county in which the garnishee resides. Code Ann. §§ 46-603, 46-604; Williams v. Smith, 169 Ga. 136 (149 SE 908).

3 Overruled in Dickinson v. Allison, 10 Ga. 557, insofar as it may conflict with that decision. Dickinson held that a scire facias to revive a dormant judgment is not an "original action” to which the constitutional venue provision applied but is a continuance of the suit in which the judgment was rendered.

4 These cases were decided before CPA § 14 made available the procedural device of impleader.