Masters v. Pardue, 35475
| Decision Date | 23 February 1955 |
| Docket Number | No. 35475,No. 1,35475,1 |
| Citation | 91 Ga.App. 684,86 S.E.2d 704 |
| Parties | Vernon MASTERS v. G. H. PARDUE et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
A vouchee is not a party defendant to a law action, and cannot properly be made a party defendant to the record over the objection of the plaintiff; therefore, the court erred in making the vouchee a party defendant over the objection of the plaintiff and in allowing the case to proceed under such circumstances.
Vernon Masters sued United States Fidelity and Guaranty Company as surety on the official bond of George H. Pardue, Sheriff of Habersham County. The defendant vouched the sheriff into the action. On the petition of the sheriff, the court, over the objection of the plaintiff, made the sheriff a party defendant as a matter of record in the action. The jury returned a verdict for the 'defendants' in the action. The plaintiff's amended motion for a new trial was denied, and he assigns error on the ruling making the sheriff a party defendant and on the judgment denying the amended motion for a new trial.
Irwin R. Kimzey, Clarkesville, Kimzey & Kimzey, Herbert B. Kimzey, Cornelia, for plaintiff in error.
Kimzey & Crawford, Cornelia, for defendants in error.
The plaintiff sued United States Fidelity & Guaranty Company on a sheriff's official bond. The bond was a joint and several obligation, and the plaintiff had the right to proceed against the surety alone without joining the sheriff. Jefferson v. Hartley, 81 Ga. 716(6), 9 S.E. 174. The sheriff petitioned the court to be made a party defendant. The court by order made the sheriff a party defendant to the record; allowed him to file defensive pleadings, and to conduct himself as a party defendant during the trial; instructed the jury to return a verdict either for or against the 'defendants,' and the jury returned a verdict for the 'defendants.' A vouchee may set up any defense which would tend to relieve either himself or the voucher from liability in the action then pending. Raleigh & Gaston R. Co. v. Western & A. R. Co., 6 Ga.App. 616, 65 S.E. 586; Acme Fast Freight v. Southern Ry. Co., 65 Ga.App. 647, 16 S.E.2d 62. However, Code, § 38-624, relating to vouchment, is not authority for making a vouchee a party defendant to the action against the wishes of the plaintiff. The sheriff cannot be considered an intervenor. ...
To continue reading
Request your trial
-
Keitz v. National Paving & Contracting Co.
...Co. v. District of Columbia, supra; Hoskins v. Hotel Randolph Co., 203 Iowa 1152, 211 N.W. 423, 65 A.L.R. 1125; Masters v. Pardue, 91 Ga.App., 684, 86 S.E.2d 704; Lowrance Buick Co. v. Mullinax, 91 Ga.App. 865, 87 S.E.2d 412, 414. Restatement, Restitution, and Restatement, Judgments, make i......
-
Clary Appliance & Furniture Center, Inc. v. Butler
...him.' Roberson was placed on the stand by the defendant and was asked leading questions. This court held in Masters v. Pardue, 91 .ga.App. 684, 86 S.E.2d 704, that a vouchee is not a party defendant to a law action, and cannot properly be made a party defendant to the record over the object......
-
Life & Cas. Ins. Co. of Tenn. v. Webb
...of the spouse defendant into court in the present case (see Pardue v. Masters, 211 Ga. 772, 88 S.E.2d 385, affirming Masters v. Pardue, 91 Ga.App. 684, 86 S.E.2d 704), it is not necessary to decide in this case, as, in our opinion, the cause of action is different in the two cases. A cause ......
-
National Sur. Corp. v. Boney
...The sheriff is not, as contended by the defendant, a necessary party to a suit on his official bond. Code, § 3-204; Masters v. Pardue, 91 Ga.App. 684, 685, 86 S.E.2d 704; Jefferson v. Hartley, 81 Ga. 716, 9 S.E. The authorities cited by counsel for the defendant have been carefully read but......