4 Ga. App. 429 | Ga. Ct. App. | 1908
(After stating the foregoing facts.)
Section 5234 of the Civil Code, which 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 will be conclusive upon the party vouched, as to the amount and right of the plaintiff to recover,” is merely declaratory of the principle announced by the Supreme Court in the case of Western & Atlantic R. Co. v. Atlanta, 74 Ga. 774; and the language of that decision is an almost literal adaptation of what is said by the Supreme Court of the United States in the case of Chicago v. Robbins, 2 Black, 418 (17 U. S. (L. ed.) 298). This code section, while not exhaustive, states the law governing such eases with fair accuracy. Under it the person vouched into
We have discussed this question at some length because it has not been a frequent matter of adjudication in this State, and in no case has 'it been given anything like a full discussion. Applying these principles to the case at bar: If it was a case in which the property owners had an action over against McGilvray and Ogletree, the judgment in favor of the tenants concludes the following facts: that in making the improvements to the building in question, and through the negligent manner in which the work was done, the building collapsed and damaged the tenants in the sum fixed by the verdict, and that the relation between the alleged cause and these damages was such that the recovery was lawful and in all respects proper. It is not disputed that McGilvray and Ogletree were regularly touched. It is not disputed that McGilvray was the contractor by whom the work was actually done and that if in fact the building collapsed through negligence in doing the work, it was necessarily the negligence of McGilvray, and not that of another. If as to this point there had been any dispute,
Judgment reversed.