Mathews v. Brown, 30209

• Decision Date: 01 October 1975
• Docket Number: No. 30209,30209
• Citation: 235 Ga. 454,219 S.E.2d 701
• Parties: John J. MATHEWS v. Jerry R. BROWN.
• Court: Georgia Supreme Court

Page 701

219 S.E.2d 701

235 Ga. 454

John J. MATHEWS v. Jerry R. BROWN.

No. 30209.

Supreme Court of Georgia.

Oct. 1, 1975.

Rehearing Denied Oct. 28, 1975.

Oze R. Horton, Hapeville, for appellant.

Thomas K. McWhorter, Jonesboro, for appellee.

INGRAM, Justice.

Appellant is the plaintiff in the trial court where he filed a suit in ejectment against the tenant of a third party seeking to establish his claim of title to the real property occupied by the tenant and also seeking mesne profits. The tenant answered that he was in possession under his landlord who had an outstanding paramount title to the property superior to that of appellant. The third party landlord was not made a party to the case, but after the tenant moved out, the landlord defended the case in his tenant's name. Appellant's motion for summary judgment was denied in the trial court and he appeals upon obtaining a certificate to do so.

The parties served interrogatories upon each other. Some were answered and some were not. The trial court, after a hearing, overruled appellant's objections to two of defendant's interrogatories and also overruled appellant's motion to compel answers by defendant to several of many interrogatories addressed to him. Thereafter, in 1971, appellant's attorney stipulated the case to the active list for trial, certifying to the trial judge that the case was ready for trial as discovery and all other preliminary matters had been completed. Subsequently, in September, 1974, appellant filed his motion for summary judgment and a hearing was set on the motion for November 4, 1974. On the day before the hearing, two affidavits in opposition to the motion were served on appellant's counsel. They were considered by the trial court along with an affidavit of the appellant and other evidence presented at the hearing. The trial court determined the affidavits submitted on behalf of the defendant created an issue of material fact in the case and therefore overruled the motion for summary judgment.

Appellant seeks a reversal of the trial court's judgment on the theory that the opposing affidavits were not filed on behalf of the defendant but were actually filed on behalf of the defendant's landlord by his attorney and that the affidavits were not made on personal knowledge and create no issue for trial.

The basic legal difficulty with appellant's failure to make the landlord a party is that if he hopes to obtain a judgment that is binding on the landlord, he needs to involve him in the litigation. Where the landlord, as the real claimant to the land, is not served and has no opportunity to assert his title, he cannot be bound by the judgment rendered against his tenant. Harrison v. Hester, 163 Ga. 250(3), 253, 135 S.E. 845 (1926). Since the landlord, as the actual claimant to the title litigated here, has for all practical purposes taken over the defense of this suit, the issue of superior title to the disputed property can be adjudicated between the actual parties at interest. Therefore, we hold that the defendant's landlord, as the real claimant, can properly defend the case and was authorized to employ counsel to assert whatever claim he has to the property. However, under the present Code pleading practice the landlord should be made a formal party to the case.

The landlord was authorized to defend the suit in his tenant's name under the former practice without being formally joined as a party. See, Sanford v. Tanner, 114 Ga. 1005, 1010, 41 S.E. 668 (1902). The C.P.A. (Code Ann. § 81A-121) now permits joinder of parties by the court on its own initiative at any stage of the action and on such terms as are just. As the landlord has in fact defended the suit, the trial court is directed to enter an order formally joining him as a defendant. The case can then proceed to trial of the issues unless it is...