186 Ga. 742 | Ga. | 1938
Mrs. Loeb, a vouchee in a bail-trover case involving title to a diamond ring, brought'by Tatum against Lewis, undertook to vouch May in the same suit. In that suit Tatum prevailed and obtained the ring which Mrs. Loeb had purchased from May. ' Subsequently Mrs. Loeb brought the present suit against May. In the instant case it was stipulated that the ring which Mrs. Loeb purchased from May did in fact belong to May at the- time of the purchase, that the ring never belonged to Tatum; but the ring recovered by Tatum was the same ring that May sold to Mrs. Loeb. She predicates her case against May on the contention that May was bound by the judgment in the case of Tatum v. Lewis. She obtained judgment against May in the trial court. Upon his motion for new trial being overruled, May took his case to the Court of Appeals, where the judgment was reversed. Mrs. Loeb applied to this court for a writ of certiorari, which was granted.
1. Counsel for Mrs. Loeb invoke section 38-624 of the Code of 1933, which reads as follows: '“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.” Counsel for May, however, take the position that the right to vouch another into court is by the terms of the section given to a defendant,' and by inference to a defendant only, and that a person who is a mere vouchee, and not a defendant, can not make another bound by vouching him into court, where the subject-matter of the suit is personalty. For reasons which will presently appear, a ruling on that point is not necessary to the decision we are about to make, and therefore an expression of our view thereon would be obiter.
May’s testimony was: “I had a conversation with Mrs. Loeb after the suit had been filed in the Tatum case. Mrs. Loeb came to see me and told me such a case was pending; a bail-trover case was pending for that ring. I says, ‘I think that -is all nonsense. You know the ring, and I have the right before that fellow claims he lost the ring, and I don’t think you will have any worry about that ring.’ She says, ‘What shall I do?’ I said, ‘Go on and see an attorney.’ And she said, ‘Who would you suggest?’ And I suggested that she go out and see Albert Mayer; and that is the last I heard of it. Absolutely, I did not employ Albert Mayer and did not authorize anybody to employ him for me, and have paid him no fee whatsoever. When I was in court the evidence was taken down by a reporter; and I was asked in that case in Mrs. Loeb’s presence what interest I had in the ease, and I replied that I was merely a witness. I had nothing else to do with the case. I stated that in that case under oath. Mrs. Loeb never asked me to come into court in any capacity except as a witness.” We see in this a notice to him of the pendency of the suit, but no request from her to him that he defend the suit. When it is' sought to bind a third party by a judgment in a suit to which he is not a party, he should be given a more formal notice than that shown by the testimony quoted above, with a demand that he appear and defend; and this should involve the right of the party vouched not only to appear, but to take charge of and direct the litigation. A mere notice, unless it involves the right
There are many authorities to the effect that if one who could have been properly vouched, but who was not, actually appeared at the trial and made defense, he is bound by the proceedings; and
Judgment affirmed.