Lester Witte & Co. v. Cobb Bank & Trust Co.

• Citation: 282 S.E.2d 296,248 Ga. 235
• Decision Date: 29 September 1981
• Docket Number: No. 37724,37724
• Parties: LESTER WITTE & COMPANY et al. v. COBB BANK AND TRUST COMPANY.
• Court: Supreme Court of Georgia

Page 296

282 S.E.2d 296

248 Ga. 235

LESTER WITTE & COMPANY et al. v. COBB BANK AND TRUST COMPANY.

No. 37724.

Supreme Court of Georgia.

Sept. 29, 1981.

Robert W. Patrick, Bruce B. Weddell, Powell, Goldstein, Frazer & Murphy, Atlanta, Kastel & Rutkoff, Chicago, Ill., for Lester Witte & Co. et al.

Everette Doffermyre, Jr., Kilpatrick & Cody, Atlanta, Buddy Darden, George W. Darden III, Awtrey & Parker, Marietta, John W. Chambers, Sr., Chambers & Chambers, Charles A. Evans, Flournoy & Evans, Marietta, for Cobb Bank and Trust Co.

HILL, Presiding Justice.

Cobb Bank and Trust Company sued Lester Witte & Company (hereinafter "Witte"), Stephen R. Gross, Henry E. Lane, Jr., and Frank H. May in Cobb County Superior Court. Subsequently Witte and Gross filed a pleading denominated as "Cross-Claim and Third-Party Complaint" against May (their co-defendant and a resident of Cobb County) as a cross-defendant, and naming John E. Aderhold and E. Earl Patton (residents of Fulton County) as third-party defendants. Witte and Gross allege that May, Aderhold and Patton are secondarily, jointly, or primarily responsible for all the bank's alleged losses, and they seek contribution or indemnification from them as joint tortfeasors. The trial court granted the motion of the third-party Fulton County defendants to dismiss for lack of venue and certified the issue for immediate review.

Disposition of this case is controlled by the provision of the Georgia Constitution which provides that "Suits against joint obligors, joint promissors, co-partners, or joint trespassers, residing in different counties, may be tried in either county." Ga.Const. Art. VI, Sec. XIV, Par. IV (Code Ann. § 2-4304). Joint trespassers having been held to be synonymous with joint tortfeasors, venue lies under this provision against all joint tortfeasors in the county of residence of any of the joint tortfeasors. Cox v. Strickland, 120 Ga. 104, 106-108, 47 S.E. 912 (1904); Southern Ry. v. City of Rome, 179 Ga. 449, 455-56, 176 S.E. 7 (1934). The fact in this case that one of the alleged joint tortfeasors is the defendant on a cross-claim while the other two are third-party defendants does not alter their status as joint tortfeasors nor do the third-party defendants contend it does. The Constitution does not concern itself with whether the joint tortfeasors be cross-defendants, third-party defendants, or a combination of the two. It merely provides that suits against joint tortfeasors residing in different counties may be brought in either county. We do not consider the provisions of the Civil Practice Act pertaining to cross-claims ( Code Ann. § 81A-113(g)), and to third-party practice (Code Ann. § 81A-114), to be in conflict with the Constitution; of course, even if they were, the venue provisions of the Constitution would be controlling and cannot be extended or limited by the Civil Practice Act. Register v. Stone's Independent Oil Distributors, Inc., 227 Ga. 123, 125, 179 S.E.2d 68 (1971); Code Ann. § 81A-182.

The third-party defendants, Aderhold and Patton, contend that Register v. Stone's Independent Oil Distributors, Inc., supra, 227 Ga. 123, 179 S.E.2d 68, demands that their motion to dismiss be sustained. We cannot agree. At issue in Register was whether a third-party action was an independent action requiring that it be brought in the county of residence of one of the third-party defendants; the court held that it was, and that the third-party complaint was subject to...