Register v. Stone's Independent Oil Distributors

• Decision Date: 13 July 1970
• Docket Number: Nos. 1,3,2,No. 44908,44908,s. 1
• Citation: 122 Ga.App. 335,177 S.E.2d 92
• Parties: G. P. REGISTER et al. v. STONE'S INDEPENDENT OIL DISTRIBUTORS et al
• Court: Georgia Court of Appeals

Page 92

177 S.E.2d 92

122 Ga.App. 335

G. P. REGISTER et al. v. STONE'S INDEPENDENT OIL DISTRIBUTORS et al.

No. 44908.

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

July 13, 1970.

Rehearing Denied July 30, 1970.

Certiorari Granted Sept. 15, 1970.

Syllabus by the Court

1. The impleading of a third-party defendant under CPA § 14(a) (Code Ann. § 81A-114(a)) is not an independent 'suit' or 'case' so that it must satisfy within itself the venue requirements of our Constitution (Art. VI, Sec. XIV; Code Ann. § 2-4901 et seq.) but is an ancillary proceeding with its venue resting upon that of the main action. Hence there is no inhibition against the impleading of a party who resides in a county other than that in which the main action pends.

2, 3. By its terms CPA § 8(a) (Code Ann. § 81A-108(a)), with its notice-pleading provisions, is applicable to third-party complaints under CPA § 14(a) (Code Ann. § 81A-114(a)). Whether a third-party complaint complies with CPA § 8(a), and the basis upon which the original defendant claims that the third- party defendant is liable over to him sufficiently appears, the complaint is sufficient as to the form of the pleading to withstand a motion to dismiss. It is not necessary in order to maintain the third-party complaint that the original defendant admit liability to the original plaintiff, nor is it necessary that the allegations show that recovery by the original defendant from the third-party defendant is a certainty. The complaint should be allowed to stand if, under some construction of the facts which might be adduced at trial, recovery would be possible.

Mrs. J. W. Bailey brought suit in the Superior Court of Dodge County for loss of consortium of her husband against James Ross, Jr. and his employer, Stone's Independent Oil Distributors, Inc.; Gerald NeSmith and his employer, Rentz Bus Lines, a partnership consisting of G. P. Register and Burtz V. Register; and Dallas Rodgers. The complaint alleged that one Charlie Mullis collided with the northerly side of a bridge on an east-west highway in such a manner that his automobile came to rest blocking the west-bound traffic lane. When plaintiff's husband came upon the scene the automobile in which he was riding was parked, and he ran back to rescue Mullis who was injured and lying helpless in the wreckage. Stone's tanker truck, driven by Ross, drove onto the bridge traveling easterly and stopped in the immediate vicinity of the Mullis wreckage with its headlights on high beam; Rodgers approached from the opposite direction, traveling westerly, collided with the tanker truck and careened into the Mullis wreckage; NeSmith, who was following Rodgers driving Rentz' bus, collided with the Rodgers vehicle; and these collisions crushed plaintiff's husband against the Mullis vehicle. None of the defendants except Rodgers was a resident of Dodge County, it being alleged that venue was properly in Dodge Superior Court since the action was brought jointly and severally against all the defendants, including the resident Rodgers, for their joint and concurring negligence as set out in the complaint.

The plaintiff then amended her complaint by striking NeSmith and his employer Rentz as defendants, and Ross and his employer Stone filed a third-party complaint against them as third-party defendants after obtaining leave of the court pursuant to CPA § 14(a) (Code Ann. § 81A-114(a)). NeSmith and Rentz filed their substantially identical motions to dismiss the third-party complaint, one of the grounds being that it would be in violation of the Constitution of Georgia, Art. VI, Sec. XIV, Par. IV and VI (Code Ann. §§ 2-4904, 4906) to apply CPA § 14(a) (Code Ann. § 81A-114(a)) to them since they were residents of counties other than the county where suit was brought. The trial court denied the motions to dismiss, certifying its order for immediate review, and the appeal was taken to the Supreme Court. That court transferred the case here. Register v. Stone's Independent Oil Distributors, 225 Ga. 490, 169 S.E.2d 781.

Martin, Snow, Grant & Napier, George C. Grant, Macon, for appellants.

Adams, O'Neal, Steele, Thornton, Hemingway & McKenney, H. T. O'Neal, Jr., Harris, Russell & Watkins, Joseph H. Davis, Macon, for appellees.

EBERHARDT, Judge.

1. The issue is squarely raised as to whether the impleading of a third-party defendant under CPA § 14(a) (Code Ann. § 81A-114(a)) is an ancillary proceeding with its venue resting upon that of the main action, or whether it is separable and distinct from the cause of action between the plaintiff and the defendant in the main action and is essentially an independent 'suit' or 'case' so that it must satisfy within itself the venue requirements of our Constitution, Art. VI, Sec. XIV (Code Ann. § 2-4901 et seq.). ¹ Since the claim for contribution asserted against the third-party defendants does not fall within one of the exceptions enumerated in the Constitution (Code Ann. §§ 2-4901 to 2-4905), and since CPA § 82 (Code Ann. § 81A-182) provides that 'This Title shall not be construed to extend or limit the jurisdiction of the courts or the venue of actions therein,' the venue requirements of the Constitution (Code Ann. § 2-4906) are not met with respect to these nonresident third-party defendants unless their impleading is an ancillary proceeding to the main action rather than a 'suit' or 'case' within the meaning of those terms as employed in the previously-cited Constitutional provisions. In this connection it should be noted that the fact the third-party defendants could be joined as original defendants by the plaintiff under the joint-tortfeasor venue provision of the Constitution (Code Ann. § 2-4904) is not determinative of the matter, contrary to the trial court's reasoning. If the claim asserted against co-defendants or third parties is essentially independent rather than one ancillary to the main action, it must satisfy within itself the Constitutional venue requirements. Cf. Barnes v. Banks, 154 Ga. 706, 115 S.E. 71; Huckabee Auto Co. v. Norris, 190 Ga. 515, 9 S.E.2d 840; Terhune v. Pettit, 195 Ga. 793, 25 S.E.2d 660. But see Roberts v. McBrayer, 194 Ga. 606, 22 S.E.2d 165. See also Carswell v. Macon, Mfg. Co., 38 Ga. 403; Dawson v. Equitable Mortgage Co., 109 Ga. 389, 392, 34 S.E. 668; Fourth Nat'l Bk. of Columbus v. Mooty, 143 Ga. 137, 84 S.E. 546.

What, then, is an ancillary proceeding? It is one growing out of or auxiliary to another action or suit, or which is subordinate to or in aid of a primary action, either at law or in equity. See Black's Law Dictionary, 'Ancillary,' 'Ancillary Bill or Suit,' 'Ancillary Proceeding' (4th Ed. 1957). An example is the use of a garnishment proceeding which, even though considered to be a distinct suit against a separate party on a new cause of action, is denominated as 'ancillary to the main action.' Dent v. Dent, 118 Ga. 853, 45 S.E. 680. Thus in Huron v. Huron, 1 T.U.P.Charlt. 160, 'returns were made by garnishees residing in different counties, and upon motion of Davis and Berrien to enter up judgment against them for the amount of their returns, it was objected by Harris, for the garnishees, in arrest of this motion, that the 3d section of the attachment law was unconstitutional, ² because no person could, (except in the case of joint obligors) be sued out of the county in which he resided: and these garnishees resided in the County of Richmond (while the motion for judgment was made in the pending action in the Chatham County Court).' The objection was overruled, the court stating: 'The constitution directs, that the party shall be sued in the county where he resides; but this constitutional privilege applies to original actions which clearly designate the parties, plaintiff and defendant. It does not interfere with those incidental remedies, which necessarily result from the exigencies of the original action * * *. The attachment served upon (the garnishee) is therefore incidental, or auxiliary to the original action, and does not fall under the constitutional privilege given to defendants.'

Similarly, in Garvin v. Gallagher, 1 Kelly 315, ³ Gallagher sued Walsh in Muscogee Superior Court, and upon his being arrested Garvin became his bail. Judgment was obtained against Walsh and execution against his body was issued, which was returned that he was not to be found. A writ of scire facias was then sued out, directed to the sheriff of Bibb County, where Garvin resided, requiring him to appear and show cause why Gallagher should not have execution against him for the amount due on the judgment. Garvin moved to quash the scire facias on the grounds, inter alia, that he was a resident of Bibb County in which county alone he was liable to be sued and compellable to answer. The Supreme Court affirmed the overruling of this ground, stating: 'We do not think scire facias against bail is such an original suit as was contemplated by the Constitution. The original suit in our judgment gave the court jurisdiction to proceed against the bail, being part of the proceedings which appertain to the original suit.'

Perhaps one of the best examples of an ancillary proceeding is to be found in the vouchment of another to defend an action. An exhaustive discussion of this by Judge Powell is found in McArthor v. Ogletree, 4 Ga.App. 429, 61 S.E. 859. When the vouchee has been properly notified he may come in and defend, or he may refrain-but in either event, he is bound by the result, as to the right of the plaintiff to recover and as to the amount. Code § 38-624. That proceeding, of course, requires the bringing of a second action to determine the liability over of the vouchee to the voucher since there is no procedural device available whereby the vouchee's liability over can be determined in the plaintiff's action against the voucher. It is interesting to note that Professor Moore, in tracing the historical background of Fed. Rule 14, from which our CPA...