This is an interlocutory review of the order of the trial court denying appellants/defendants’ motion to serve a third-party complaint on the grounds that “defendant has a federal action pending against this third-party defendant, Fruehauf Trailer Corporation, and may not prosecute two actions at the same time against the same defendant. See OCGA § 9-2-5.”
Appellees filed suit for damages arising when a collision occurred between the tractor-trailer driven by appellant Tony D. Huff and a pickup truck driven by appellee Lewis Scott Valentine. At the time of the incident, appellant Huff was hauling a load of steel coil; when negotiating a curve, the Fruehauf trailer began to overturn and the load broke loose striking the pickup truck. Huff filed suit against Fruehauf Trailer Corporation in Barrow County but the suit was removed by Fruehauf to federal court. Shortly thereafter, appellees filed this suit in Fulton County against appellants for damages sustained due to the averred negligent operation of the tractor-trailer by appellant Huff. Appellant Huff moved to dismiss his pending action in federal court but the United States District Court denied the motion. Appellants then filed a joint motion to serve a third-party complaint against Fruehauf; the third-party complaint avers, inter alia, a claim of right to contribution or indemnity in the event liability is adjudged against any or all of appellants/defendants, and averred, inter alia, claims for property, medical, and lost wage damages sustained by appellant Huff. Held:
1. OCGA § 9-2-5 (a) provides: “No plaintiff may prosecute two actions in the courts at the same time for the same cause of action and against the same party. If two such actions are commenced simultaneously, the defendant may require the plaintiff to elect which he will prosecute. If two such actions are commenced at different times, the pendency of the former shall be a good defense to the latter.”
OCGA § 9-2-44 (a) provides: “A former recovery or the pendency of a former action for the same cause of action between the same parties in the same or any other court having jurisdiction shall be a good cause of abatement. However, if the first action is so defective that no recovery can possibly be had, the pendency of a former action shall not abate the latter.”
Pretermitting whether the federal suit involves the same parties and the same cause of action within the meaning of OCGA §§ 9-2-5
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(a) and 9-2-44 (a), is the question whether these statutes pertain to prior suits filed in federal court. OCGA §§ 9-2-5 (a) and 9-2-44 (a) are closely related in effect and are to be considered and applied together.
Jones v. Rich’s, Inc.,
The various cases cited by appellants, where a prior suit was not filed in federal court, are distinguishable and not controlling.
Appellees attempt to rely on the appellate principle that a correct ruling of a trial court will not be reversed regardless of the reason therefor. This general rule of appellate practice, however, is not without a well-settled exception; “ ‘[o]rdinarily, a judgment right for any reason must be affirmed, but where it is apparent that the court rests its judgment on reasons which are erroneous or
upon an erroneous legal theory,
it commits reversible error.’ ” (Emphasis supplied.)
Ayers v. Yancey Bros. Co.,
2. In view of our holding in Division 1 above, we need not address the remaining issues which we had requested the parties to discuss in their briefs. Though, in the interest of judicial economy we note, as a general rule, “‘[a] party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim may
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join, either as independent or as alternate claims, as many claims, legal or equitable, as he has against an opposing party.’”
Cohen v. McLaughlin,
Sec. I, Par. IV) that such authority could not be used as a means of preventing appellants from filing a timely third-party complaint for indemnity and contribution.
Judgment reversed.