North Carolina Nat. Bank v. Peoples Bank of LaGrange

• Decision Date: 25 September 1972
• Docket Number: Nos. 1,2,3,No. 47198,47198,s. 1
• Citation: 127 Ga.App. 372,193 S.E.2d 571
• Parties: NORTH CAROLINA NATIONAL BANK v. PEOPLES BANK OF LaGRANGE
• Court: Georgia Court of Appeals

Page 571

193 S.E.2d 571

127 Ga.App. 372

NORTH CAROLINA NATIONAL BANK v. PEOPLES BANK OF LaGRANGE.

No. 47198.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Sept. 25, 1972.

Rehearing Denied Oct. 20, 1972.

Syllabus by the Court

1. A plaintiff is not required to join all tortfeasors to recover the damages sustained, nor may the plaintiff be compelled to bring in the other tortfeasors.

2. Permissive joinder may be authorized under Code Ann. § 81A-120 (§ 20 CPA; Ga.L.1966, pp. 609, 631). An action ex contractu and ex delicto may also be had in one complaint, and while persons having a joint interest and persons who are indispensable but who ought to be parties, if complete relief is to be accorded, may be made parties by the court; nevertheless since the plaintiff is the master of his own lawsuit the court cannot meddle, requiring him to file an ex contractu action against other defendants when he is suing in tort against the named defendant.

North Carolina National Bank sued Peoples Bank of LaGrange for damages, alleging defendant had made false and fraudulent representations to it for the purpose of inducing plaintiff to make a loan to L. C. Robinson & Sons, Inc.; and alleging that the borrower was a customer of defendant, and was known by defendant to be in such grave financial condition that its survival was in danger; and alleging that it was advantageous to the defendant that the borrower receive the loan made to it by plaintiff. The indebtedness was in the form of a note executed by the borrower with personal guaranty of payment executed by its president. After maturity the note was not paid and plaintiff filed this suit against defendant. The defendant filed a petition to add indispensable parties under Code Ann. § 81A-119 (Ga.L.1966, pp. 609, 630) to wit: L. C. Robinson & Sons, Inc., an Alabama corporation, and G. E. Robinson, its president, as parties defendant. Defendant alleged that no action has been brought against said new parties defendant to collect the amount due on the note; and, that, for the parties in this action to obtain complete relief, it is necessary they be made defendants. These new parties consented to being added. The defendant bank filed an answer, denying the material portions of the complaint. An affidavit in support of the motion to add indispensable parties was executed by Gerson E. Robinson deposing that he is one and the same person as G. E. Robinson; that he executed the note individually and as president of L. C. Robinson & Sons, Inc.; that the corporation is indebted to the plaintiff as set forth therein; that he is personally liable for the payment of same as endorser; that he is not insolvent; and that the corporation is not a bankrupt.

The court ordered that these new parties be made defendants, in order that complete relief be accorded. The court also ordered that the plaintiff file an amended complaint naming these parties as defendants. The appeal is from this judgment.

Trotter & Duncan, Thurman E. Duncan, LaGrange, for appellant.

Richter & Birdsong, A. W. Birdsong, LaGrange, for appellee.

EVANS, Judge.

When may new parties be made and joined in an action; and when may the trial court require such additional parties?

The answer to these two questions will be found in Code Ann. § 81A-119(a) and (b), and Code Ann. § 81A-123 (Ga.L.1966, pp. 609, 630, 632). Code Ann. § 81A-119(a) provides: '(a) Subject to the provisions of section 81A-123 and of subdivision (b) of this section, persons having a joint interest shall be made parties and be joined on the same side as plaintiffs or defendants.' (Emphasis supplied.) Code Ann. § 81A-119(b) provides: 'When persons who are not indispensable, but who ought to be parties if complete relief is to be accorded between those already parties, have not been made parties and are subject to the jurisdiction of the court, the court shall order them summoned to appear in the action. The court in its discretion may proceed in the action without making such persons parties, if its jurisdiction over them can be acquired only by their consent or voluntary appearance; but the judgment rendered therein does not affect the rights or liabilities of absent persons.'

Code Ann. § 81A-123(a) provides: 'If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued, when the character of the right sought to be enforced for or against the class is: (1) Joint, or common, or secondary in the sense that the owner of a primary right refuses to enforce that right and a member of the class thereby becomes entitled to enforce it; (2) Several, and the object of the action is the adjudication of claims which do or may affect specific property involved in the action.' (Emphasis supplied.)

Here, the situation is not within the purview of these two statutes. It is not shown that the new parties defendant have a 'joint interest' so as to be subject to Code Ann. § 81A-119.

Code Ann. § 81A-119 deals with necessary and indispensable parties and the two proposed new defendants (L. C. Robinson & Sons, Inc. and G. E. Robinson) sought to be brought in by the defendant bank are not necessary or indispensable parties. 'The principles applicable to a determination of whether a party is merely proper or whether he is one who should be joined because a necessary or indispensable party are comparatively simple. They revolve about the question of interest in the controversy. Persons who may be joined under Rule 20 because of an interest in a question of law or fact are proper parties, but they are not necessary or indispensable. Tortfeasors are not indispensable or necessary to an action against one of their number, because their liability is both joint and several.' 3A Moore's Federal Practice 2226, § 19.07(1).

Code Ann. § 81A-120 deals with permissive joinder of parties. It is for the plaintiff to say whether he wants to sue other defendants.

'Joinder is at the option of the plaintiffs; it cannot be demanded as a matter of right by the defendant.' 3A Moore's Federal Practice 2774, § 20.05.

'One is not required to join all joint tortfeasors in one suit to recover the damage sustained; there is no right on the part of one joint tortfeasor who is sued for the joint tort to compel the plaintiff to bring in other tortfeasors.' 59 Am.Jur.2d 541, § 124.

It is not shown that this is an action where the owner of the primary right refuses to enforce it, and a member of a class thereby becomes entitled to enforce same; nor is it a several action whereby specific property is affected, so as to make Code Ann. § 81A-123 apply.

The court erred in issuing the order requiring plaintiff to bring these new parties into the case as defendants and ordering the plaintiff to amend its pleadings accordingly.

Judgment reversed.

HALL and EBERHARDT, P. JJ., and PANNELL and DEEN, JJ., concur.

BELL, C.J., and QUILLIAN, CLARK and STOLZ, JJ., dissent.

STOLZ, Judge (dissenting).

The majority opinion in this case overlooks Civil Practice Act § 19(b) (Code Ann. § 81A-119(b)) covering conditionally necessary parties, wherein it is provided: 'When persons who are not indispensable, but who ought to be parties if complete relief is to be accorded between those already parties, have not been made parties and are subject to the jurisdiction of the court, the court shall order them...