McArthor v. Ogletree

• Decision Date: 18 June 1908
• Docket Number: 1,072.
• Citation: 61 S.E. 859,4 Ga.App. 429
• Parties: McARTHOR et al. v. OGLETREE et al.
• Court: Georgia Court of Appeals

61 S.E. 859

4 Ga.App. 429

McARTHOR et al. v. OGLETREE et al.

No. 1,072.

Court of Appeals of Georgia

June 18, 1908

Syllabus by the Court.

Where one of the parties to an action vouches a third person to participate in the suit on the ground that he is a party at interest, before the voucher can invoke the judgment in that case as an estoppel against the vouchee in a subsequent action instituted between these two, it must aliunde appear that as to the cause of action upon which, by legal necessity, the original judgment was based, the voucher in fact had an action over against the vouchee, except in those cases where the prior judgment necessarily under the particular facts also establishes this relationship.

Whenever in a suit by the voucher against the vouchee, it appears that the former does in fact have a lawful and enforceable right of action over (whether by contract or by operation of law) against the latter as to the cause of action upon which a prior judgment has been rendered, that judgment is conclusive upon the vouchee as to those matters and facts which under the pleadings in that case the vouchee would have had the right to prove and urge in resistance to the judgment as rendered.

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by H. W. McArthor and others against S. H. Ogletree and others. Judgment for defendants, and plaintiffs bring error. Reversed.

Westmoreland Bros. and J. N. Bateman, for plaintiffs in error.

Mayson & Hill, for defendants in error.

POWELL J.

Section 5234 of the Civil Code, which provides, "Where a defendant may have a remedy over against another, and vouches him into court, by giving notice of the pendency of the suit the judgment rendered therein will be conclusive upon the party vouched, as to the amount and right of the plaintiff to recover," is merely declaratory of the principle announced by the Supreme Court in the case of Western & Atlantic R. Co. v. Atlanta, 74 Ga. 774; and the language of that decision is an almost literal adaptation of what is said by the Supreme Court of the United States in the case of Chicago v. Robbins, 2 Black (U. S.) 418, 17 L.Ed 298. This Code section, while not exhaustive, states the law governing such cases with fair accuracy. Under it the person vouched into court is bound by the judgment rendered so far as the plaintiff's right to recover and the amount of the recovery are concerned; but, before any application of this principle can be made, it must appear that the defendant in that suit is entitled to a remedy over against the person vouched. When the person vouched is sued, the initial question arises: "Has the present plaintiff an action over against the present defendant on account of the matter involved in the former suit?" This question the former judgment has not concluded. To the state it in slightly different language: "While a judgment against the person to be indemnified will be conclusive on the person responsible to him, so far as concerns the fact of the rendition of the judgment, its amount, and the cause of action on which it was rendered, it will not determine the question whether or not the one person is in fact responsible to the other; nor will it preclude the person responsible over from setting up any defense which from the nature of the action or the pleadings he could not have interposed in the first action, had he been a formal party to it." The first judgment conclusively establishes the relationships and liabilities existing between the original parties as to the cause of action asserted in the first suit, but does not determine the relationships and liabilities between the party vouching and the person vouched as to that cause of action, except so far as those relationships and liabilities are necessarily involved in the first suit and in the judgment rendered therein.

The relationship between the voucher and the vouchee may arise by contract, express or implied, or by operation of law. When the relationship is contractual, it is usually easier of ascertainment than in other cases. For example: The warrantor of the title of a defendant in an ejectment suit bears to the cause of action an express contractual relationship. If the judgment in the ejectment case goes against the defendant, it conclusively establishes against the person vouched as a warrantor that the title of the defendant has failed, but not the fact that the person vouched was a warrantor of it. The contract must be shown to prove this. The unconditional transferror of a promissory note bears to the transferee and the cause of action asserted by him against the maker in a suit on the note an implied contractual relationship. If the transferror is vouched, and a successful defense is asserted the judgment concludes him from asserting that the defense was not meritorious. Bullock v. Winter, 10 Ga. 214. In a suit brought against him by the transferee for indemnity on account of a failure to collect the note, he might plead that he did not make the transfer or that the defense arose after ...