Humble Oil & Refining Co. v. Fulcher
| Decision Date | 12 March 1973 |
| Docket Number | No. 47738,No. 2,47738,2 |
| Citation | 197 S.E.2d 416,128 Ga.App. 606 |
| Parties | HUMBLE OIL & REFINING COMPANY v. Joan B. FULCHER |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. In pending litigation a party defendant may be added by court order in a hearing on such terms as are just without prior service upon the proposed party of notice of such intention. Code Ann. § 81A-121.
2. Adding or dropping of parties to pending litigation is a matter which requires exercise of discretion by the court.
3. Where a party defendant is added by court order with the amended complaint being filed within the statutory period, service thereof upon such added defendant made reasonably promptly thereafter will not result in the action being barred by reason of the statute of limitations expiring between the date of filing and date of service of the amended complaint.
Connerat, Dunn, Hunter, Houlihan, Maclean & Exley, Malcolm Maclean, Edward C. Minor, Savannah, for appellant.
Stanley E. Harris, Jr., Savannah, for appellee.
This is an appeal from the granting of motion by a plaintiff to add Humble Oil & Refining Company as a party defendant to a suit which had been pending almost two years at the date of the order. For decision are three questions: (1) Is there a requirement for legal notice to be served upon the party sought to be added before hearing such motion to add a party? (2) Did the court abuse its discretion in ordering joinder of Humble Oil 21 months after commencement of the suit against the original defendants? and (3) Did the statute of limitations bar such joinder when the petition was filed within the statutory period but not served until after its expiration?
On November 9, 1970, plaintiff Fulcher sued original defendants Nace and Boatright for personal injuries sustained in an auto collision which happened August 3, 1970. Although not in the record before us it appears from the items requested to be omitted in the notice of appeal that extensive discovery proceedings ensued. Then on July 24, 1972, plaintiff served notice upon original defendants of intention to move for an order adding Humble Oil as a party defendant. The complaint originally described Nace as employee and Boatright as employer. The proposed motion averred Humble Oil to be the employer, Boatright to be manager of Humble's station, and Nace as Humble's employee. No notice was given Humble of the filing of this motion nor of the hearing thereon scheduled for July 28. On that date the judge entered an order making Humble Oil a party including therein provision for service of any amended complaint upon Humble within 30 days. The order recited that Humble Oil 'is a person whose presence is needed for a just adjudication as provided by Ga.Code Ann. § 81A-121.' On that same day plaintiff filed with the clerk two conformed copies of the original complaint, motion to add defendant and order thereon, and an amended complaint and process with direction for service to be made by Fulton County sheriff upon the foreign corporation's statutory agent for service. These documents were mailed immediately but service was not perfected until August 3, one day after expiration of the two-year negligence personal injury statute of limitation.
On August 22 Humble Oil filed its motions for dismissal which were overruled on October 2 after oral argument and briefs with the judge granting that same date the necessary immediate review certificate for this court to consider the legal points herein decided. Held:
1. This court affirms. In reviewing the record, we find no flaw in the procedural steps taken by plaintiff to add appellant as a party defendant. Further, it appears that all the necessary procedural steps were taken within the two-year limitation. With regard to procedure, Section 21 of the Civil Practice Act (Code Ann. § 81A-121; Ga.L.1966, pp. 609, 632) provided that 'Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just.' Plaintiff's motion was handled in accordance with general motion procedure. Code Ann. §§ 81A-105, 81A-107(b). Specifically, plaintiff filed a written motion on stated grounds moving for an order, which (1) would make appellant a party defendant and (2) direct the issuance of process and service on it. Copies of said motion along with notice of hearing were served on the then existing parties. The hearing duly took place with the trial court expressly finding that the proposed added party 'is a person whose presence is needed for a just adjudication.' Additionally, the court's order made provision for legal service of an amended complaint upon Humble Oil.
Appellant's contention that plaintiff's motion to add appellant as a party defendant must be served on it at the outset is without merit. There is no mandatory requirement. Federal Rule of Civil Procedure 21, upon which Section 21 of our Civil Practice Act was based and codified as § 81A-121, has been interpreted as not requiring that a proposed new party be given notice of such motion, but that notice should be given to those who are already parties to the action. See 3A Moore's Federal Practice (2d Ed.) pp. 21-25, § 21.05(1) and cits wherein it is recognized that the 'court may in its discretion permit the proposed new party to be heard.' Where, as was done here, there is no prior notice the proposed defendant may be defensive pleading filed in compliance with the statutory process attack the propriety of being brought into court. Humble Oil did in fact present its position through its motion to dismiss.
2. The 'adding or dropping of parties requires the exercise...
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