19 S.E.2d 286 | Ga. | 1942
"Where a defendant may have a remedy over against another, and vouches him into court by giving notice of the pendency of a suit, the judgment rendered therein will be conclusive upon the party vouched, as to the amount and right of the plaintiff to recover. Civil Code, § 5821. [Code of 1933, § 38-624.] The judgment in such a case is not an adjudication of the question whether the primary defendant is entitled to recover against his vouchee, upon a suit brought by him against the latter after a recovery has been had in the first action." Charleston Western Carolina Ry. Co. v. Union Warehouse c. Co.,
The issue as made in the suit of Saul against Acme was whether the defendant Acme was liable to the plaintiff Saul; and if so, in what amount. Assuming that the defendant Acme might have a remedy over against the Southern, the railway would not be bound by the adjudication as to Saul's right to recover against Acme or as to the amount of the recovery, unless the defendant had been given the right to come in and defend the suit by being vouched into court. By the terms of the quoted Code section, when a person against whom a defendant has in fact a remedy over has been thus vouched, and such remedy over has been actually established by aliunde proof, the vouchee thereby is bound by the previous judgment establishing the liability of the original defendant and the amount thereof; and this is true with respect to any and all defenses which the voucher or vouchee either made or could have made to prevent a recovery by the plaintiff in the former suit. But the mere avouchment of a third person by a defendant to a suit, under *601
the claim of a remedy over against him, and the failure of the vouchee to respond, does not adjudicate the validity of such claim of the voucher against his vouchee. The previous judgment does not determine whether the voucher's claim over against the vouchee was in fact good or bad. Charleston Western CarolinaRy. Co. v. Union Warehouse Compress Co.,
Despite the rule we have indicated, it may, however, well be conceived that the vouchee under the particular facts of a case may also be precluded by the original suit as to the additional question of his own liability over to his voucher. This would seem true in a case where, upon being vouched into court, his response as made by his own pleading or his actual procedure in his conduct of the case necessarily establishes his own liability over to the original defendant for any recovery which might be had against that defendant. See Loeb v. May, supra.
In the instant suit by Acme Fast Freight against the Southern Railway Company as delivering carrier, it appears that in the previous suit of Saul v. Acme, in which the Southern was vouched into court by the defendant Acme, the Southern had made no response. The basis of the ruling by the Court of Appeals in the instant suit, in reversing the judgment of the trial court and in adjudging that *602
the Southern was liable to Acme as a matter of law in the amount of the previous recovery by Saul against Acme, was that the previous suit adjudicated against the Southern, not only the question of Acme's liability to Saul and the amount thereof, but the additional question of the Southern's liability to Acme. Since the ruling of the Court of Appeals is grounded solely on that proposition of law, which this court deems to be erroneous, and since the assignments of error by the petitioner for certiorari to the ruling of the Court of Appeals present for review only that question of law, the judgment of the Court of Appeals will be reversed, without any determination being made by this court as to the additional question whether the aliunde proof of record in this case did or did not demand a finding that the Southern as delivering carrier was liable to Acme under the Hepburn act and the subsequent amendments thereto. 49 U.S.C.A. § 20, par. 11. That question, not having been passed upon by the Court of Appeals, remains open for determination by that court under the exceptions to the refusal of a new trial, brought to that court. The remaining question, which the adjudication by this court now makes it necessary for the Court of Appeals to determine, is whether or not from the aliunde proof a holding by it is demanded that the trial judge erred in finding in effect that Acme had failed to show that the loss occurred subsequently to the delivery of the goods by Acme to the Pennsylvania Railroad as initial carrier. As to the decision of this court being confined to questions presented by the assignments of error in the petition for certiorari, see Certiorari Rule 45, Code, § 24-4549, Simpson v. Bradley,
Judgment reversed. All the Justices concur.