5 Ga. App. 619 | Ga. Ct. App. | 1909
Upon the trial of an action for damages between W. F. Summerour and the Western & Atlantic Railroad Company, the Armour Car Lines, a corporation of New Jersey, presented a petition asking that it permitted to intervene as a party defendant, upon the ground that it was “vitally interested in said case,” and that, under certain circumstances, in the event of a recovery by the plaintiff therein against the Western & Atlantic Railroad Company, it would become liable to pay said railroad company the .amount of the recovery, or some part thereof. Dpon objection by the plaintiff, the judge, in a written order, denied this application .•and refused to make the petitioner a party defendant in the cause. 'The petitioner excepted to the refusal to permit it to intervene, to the subsequent refusal of the court to stay further proceedings in •the case until the judgment refusing the intervention could be re■viewed, and also to the judgment rendered against the defendant, ■the Western & Atlantic Railroad Company.
We are not clear that the writ of error ought to be considered at .all, but, as no motion was made to dismiss it, we shall resolve our doubts upon the question of jurisdiction, by exercising the utmost liberality in favor of the right of review. We are unable to find .•any case in which the point has been distinctly decided, and, in fact, the intimation, in Turnbull v. Foster, 116 Ga. 771 (43 S. E. 42), is rather against the right of the present plaintiff in error to review the judgment refusing to make it a party. In the Turnbull •case, supra, what purported to he a cross-bill of exceptions was dismissed, upon the ground that “a cross-bill can only be filed by the successful party on the trial below;” but in delivering the •opinion of the court, Candler, J., said that the failure to act on the petition which Mrs. Foster had filed, asking to be permitted to intervene and to have Awarded to her a certain portion of the property in controversy, was not matter for a cross-bill of exceptions; and he cited, in support this proposition, §5527 of the Civil Code, which, in its express terms, refers only to “either party in any civil •case and the defendant in any criminal proceeding,” as being entitled to procure a writ of error in the first instance. Judge Cand
We are clear that the present plaintiff in error has no right, of exception upon the ground that the judge refused to stay the cause then pending between Summerour and the Western & Atlantic Railroad Company, until his judgment upon the intervention could be reviewed, and equally clear that the Armour Car Lines can not except to the judgment rendered against the Western & Atlantic Railroad Company, when no complaint is made; by the Western & Atlantic Railroad Company itself; so that the ■case narrows itself to the consideration of the single question whether the court erred in refusing to permit the Armour Car Lines to intervene, or, in other words, whether the Armour Car Lines had a right to intervene, upon the showing made by this petition, and over the plaintiff’s objection. Counsel for the plaintiff in error concede that the determination of the right of the Armour Car Lines to be made a party to the case will probably settle the other questions raised by the bill of exceptions, because' the other questions logically and necessarily grow out of the main, question, raised by the refusal of the court to allow the intervention. The plaintiff in error cites §5234 of the Civil Code,, and the decisions in Western & Atlantic R. Co. v. Atlanta, 74 Ga. 775, Benson v. Shines, 107 Ga. 406 (33 S. E. 439), and Clarke v. Wheatley, 113 Ga. 1074 (39 S. E. 437), as authorities for the statement that “the right to be made a party and to defend where-one not originally a party to the record may be liable over for any recovery in the case, or is otherwise vitally interested, has. always been recognized both at law and in equity;” and cites the ruling in Haskins v. Bank, 100 Ga. 217, 218 (27 S. E. 985),
The right of intervention is one which in many States is expressly provided for by statute, and is controlled by the terms of those enactments. In this State intervention is a proceeding equitable in nature, and generally directed to a specific tangible subject-matter, or res, in custodia legis. No general statutory rule upon the subject having been enacted in this State, it would seem that in ordinary suits at law a plaintiff is allowed to select for himself the party against whom he prefers to proceed, — at his own risk if it develops that the proper defendant or all necessary defendants are not named. The Civil Code, §5234-, provides that “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 thereon will be conclusive upon the party vouched, as to the amount and right of the plaintiff to recover.” This section provides a means by which a defendant who is already a party may, at his option, call upon one who may be responsible to him, to assist him in the defense, or may, by vouching such a one, conclude him as to the amount of his liability to himself, and thus leave but one question in future open between them, to wit, the question as to whether he had a right to vouch him; but it does not provide for the .interjection of a mere volunteer into a suit, where the defendant has not notified him to appear, and when the plaintiff objects to his presence. The only provisions in our code for intervention are: as to creditors who may have claims to a fund raised by a creditor’s bill, which is in the custody of the court (Civil Code §4845), persons properly seeking to assert equitable remedies against assets in the hands of a receiver. (§4903), holders of liens on property in the hands of a receiver (§4911), and persons interested in funds
Bearing in mind that the present action was one in which Summerour was suing the Western & Atlantic Railroad Company for $9,000 damages, arising from the breach of an alleged contract,, and in which, if there was any liability over upon the Armour Car Lines, the defendant railroad company had not vouched the-Armour Car Lines into court, in accordance with §5234 of the¡ Civil Code, it is perfectly clear to us that the judge of the city court ruled correctly in refusing the petition and declining to-allow the Armour Car Lines to intervene. It makes no difference, in this view of the case, whether the action be construed as one-sounding in tort or on contract,’or what was the nature of the liability over, on the part of the Armour Car Lines, to the defendant, the Western & Atlantic Railroad Company. As the-Western & Atlantic Railroad Company did not vouch the Armour-Car Lines, none of the rights of the Armour Car Lines are affected by the judgment rendered against the Western & Atlantic Railroad Company. But if we should not go this far, — because of' the fact that the degree in which the question might be affected by the plaintiff in error’s participation in the trial (which is-not now before us) can not now be adjudged, — -the lower court was certainly right in declining to allow the intervention, because-the contract filed by the petitioner for intervention, as an exhibit, shows conclusively that the rights of the Armour Car Lines were-not in any sense concerned, and that the Armour Car Lines, in a legal sense, had no interest whatever in the suit then pending between Summerour and the Western & Atlantic Railroad Company. Waiving the fact that (even if the contract exhibited had been made between the Armour Car Lines and the Western & Atlantic Railroad Company) the defendant in the pending suit had not vouched the Armour Car Lines into court (and the further fact that the allegations of the petition rendered it at least doubtful whether the damages were attributable to the Armour Car Lines, and certainly show that the plaintiff, Summerour,, had no contract with the Armour Car Lines, and does not disclose-that he knew of any connection between himself and the Armour-Car Lines in Ms shipments), it appears that the Western & Atlantic Railroad Company could not have vouched the Armour Car