Pardue v. Masters

Citation88 S.E.2d 385,211 Ga. 772
Decision Date13 July 1955
Docket NumberNo. 18969,18969
PartiesGeorge H. PARDUE et al. v. Vernon MASTERS.
CourtSupreme Court of Georgia

Kimzey & Crawford, and Linton K. Crawford, Cornelia, for plaintiff in error.

Herbert B. Kimzey, and Kimzey & Kimzey, Cornelia, Irwin R. Kimzey, Clarkesville, for defendant in error.

Syllabus Opinion by the Court.

ALMAND, Justice.

After a careful study of the record in this case, and of the decision of the Court of Appeals, Masters v. Pardue, 91 Ga.App. 684, 86 S.E.2d 704, we are of the opinion that that court did not err in the judgment rendered.

Judgment affirmed.

All the Justices concur, except DUCKWORTH, C. J., and CANDLER and HAWKINS, JJ., who dissent.

CANDLER, Justice (dissenting).

I cannot agree with the ruling made by the majority in this case and therefore dissent. The Code, § 38-624, 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 shall be conclusive upon the party vouched, as to the amount and right of the plaintiff to recover.' As was said by the Court of Appeals in Raleigh & Gaston R. Co. v. Western & Atlantic R. Co., 6 Ga.App. 616, 65 S.E. 586, 587, quoted with approval by this court in Usry v. Hines-Yelton Lumber Co., 176 Ga. 660, 667, 168 S.E. 249, and Loeb v. May, 186 Ga. 742, 744, 198 S.E. 785, the quoted Code section 'is not of statutory origin, but is simply an adaptation of the language employed by the Supreme Court in the cases of Western & Atlantic R. Co. v. Atlanta, 74 Ga. 774, and Faith v. Atlanta, 78 Ga. 779, 4 S.E. 3. By an examination of the sources from which the Code section was adopted, it will be seen that it is merely a statement of a well-known common-law principle, and that it was not the intention of the codifiers by inserting it in the Code, to hedge it about with any unusual limitations or give to it any additional scope.' And the language of that section of our Code is an almost literal adaptation of what is said by the Supreme Court of the United States in the case of City of Chicago v. Robbins, 2 Black 418, 17 L.Ed. 298. In McArthor v. Ogletree, 4 Ga.App. 429, 431, 61 S.E. 859, 860, Judge Powell, speaking for the court, said: '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.' In Brown v. Chaney, 1 Ga. 410, 415, it is said: 'Where a party has the right of recovery over secured to him, either by operation of law or express contract, and he has given the person responsible due notice of the suit, the judgment, if obtained without fraud or collusion, will be conclusive evidence for him, against such person, upon any fact established by it. The latter cannot be viewed in the light of a mere stranger, because he has the means of controverting the adverse claim as though he were the nominal and real party on record.' And in the same case it was also said: 'It would be a gross violation of the great principles of justice, to say nothing of the modern practice of all civilized nations, to deprive a citizen of life, liberty or property unheard.' It has been held by this court, and the Court of Appeals that a person, when vouched into court under the provisions of the aforementioned Code section, is no longer a stranger to the cause and can rightfully take charge of and direct the defense. See Usry v. Hines-Yelton Lumber Co.; Loeb v. May; Raleigh & Gaston R. Co. v. Western & Atlantic R. Co., all supra. The opinion in the case last cited was prepared for the Court of Appeals by Judge Russell, and in 6 Ga.App. at page 622, 65 S.E. at page 589, it is said: 'But, in order for this principle to be applicable, the person vouched must have the same means of defense as he would have if the suit were proceeding directly against him. It was not the purpose of the law in creating the right to vouch to cut off the right of the vouchee to assert any defense which he might have had without it.' The cases of Bullock v. Winter, 10 Ga. 214; Lord v. Cannon, 75 Ga. 300; Taylor v. Allen, 131 Ga. 416, 62 S.E. 291; Southern Ry. Co. v. Acme Fast Freight, 193 Ga. 598, 19 S.E.2d 286, 140 A.L.R. 1118; and Byne v. Mayor, etc. of Americus, 6 Ga.App. 48, 64 S.E. 285, clearly recognize a vouchee's right to file defensive pleadings. Concerning the status of one vouched...

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7 cases
  • Clary Appliance & Furniture Center, Inc. v. Butler
    • United States
    • United States Court of Appeals (Georgia)
    • July 6, 1976
    ...means of defeating recovery as if he were a real party upon the record . . ..' However, we are bound by the holding of Pardue v. Masters, 211 Ga. 772, 88 S.E.2d 385, which affirmed 91 Ga.App. 684, 86 S.E.2d 704, supra, and held that 'a vouchee is not a party defendant.' When viewed in retro......
  • Life & Cas. Ins. Co. of Tenn. v. Webb
    • United States
    • United States Court of Appeals (Georgia)
    • September 8, 1965
    ...... affirmative because privity may subsequently have been created by the vouchment of the spouse defendant into court in the present case (see Pardue v. . Page 67. 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 ......
  • Register v. Stone's Independent Oil Distributors
    • United States
    • United States Court of Appeals (Georgia)
    • July 13, 1970
    ...action is that the vouchee is not a party to the case and can not be made such over the objections of the plaintiff. See Pardue v. Masters, 211 Ga. 772, 88 S.E.2d 385. Yet the majority opinion, in the face of this plain law and the Constitution, and while conceding that this proceeding 'req......
  • Hardee v. Allied Steel Bldgs., Inc.
    • United States
    • United States Court of Appeals (Georgia)
    • April 9, 1987
    ...4 Ga.App. 429, 61 S.E. 859. The vouchee is not a party defendant (Masters v. Pardue, 91 Ga.App. 684, 86 S.E.2d 704, aff'd. 211 Ga. 772, 88 S.E.2d 385; see Clary Appliance, etc., supra, 139 Ga.App. at p. 235, 228 S.E.2d 211 as he is in third-party practice under CPA Rule 14. Although he may ......
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