Davis v. Roper, 43941

• Citation: 167 S.E.2d 685,119 Ga.App. 442
• Decision Date: 25 March 1969
• Docket Number: No. 43941,No. 2,43941,2
• Parties: U. E. DAVIS et al. v. Everett C. ROPER
• Court: Georgia Court of Appeals

Page 685

167 S.E.2d 685

119 Ga.App. 442

U. E. DAVIS et al. v. Everett C. ROPER.

No. 43941.

Court of Appeals of Georgia, Division No. 2.

March 25, 1969.

Scott & Bouwsma Otis J. Bouwsma, Cornelia, for appellant.

Ellard & Frankum, Stephen D. Frankum, Clarkesville, for appellee.

Syllabus Opinion by the Court

QUILLIAN, Judge.

Since this appeal was taken from the dismissal of a third party complaint the following rule is applicable. 'When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however, designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudiciating all the claims and the rights and liabilities of all the parties.' Code Ann. § 81A-154(b). (Ga.L.1966, pp. 609, 658.)

In interpreting the equivalent of this section in conjunction with Federal Rule 14 (Code Ann. § 81A-114; Ga.L.1966, pp. 609 627) the federal courts have held that where a defendant's motion to implead a third party is denied the order would not be appealable inasmuch as it does not finally dispose of any rights of the defendant. 3 Moore's Federal Practice, § 14.19, p. 640 (Note 7); County Bank, Greenwood, S.C. v. First Nat. Bank of Atlanta, 4 Civ., 184 F.2d 152. If the main claim remains pending, an order dismissing a third party complaint lacks finality where the court does not execute a certificate pursuant to § 54 (Code Ann. § 81A-154). 6 Moore's Federal Practice, § 54.36, p. 251 (Note 2); David v. District of Columbia, 88 U.S.App.D.C. 92, 187 F.2d 204. Absent an express determination that there exists no just cause for delay and an express direction for entry of judgment, any order or other form of decision, however designated, which adjudicates less than all the claims does not terminate the action as to any of the claims. 6 Moore's Federal Practice, § 54.28 (1 & 2) and § 54.36; 3 Barron & Holtzoff, Federal Practice and Procedure, § 1193 (1968 pocket part, pp. 22-26). Republic of China v. American Express Co., 2 Cir., 190 F.2d 334, 338; Atkins, Kroll Ltd. v. Cabrera, 9 Cir., 277 F.2d 922; Thompson v. Trent Maritime Co., 3 Cir., 343 F.2d 200; Woodby v. Chesapeake & O.R. Co., 6 Cir., 345 F.2d 668.

In the instant case...