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FRASER v. MOOSE et al.
Equitable petition. Lumpkin Superior Court. Before Judge Blackshear.
FELTON, Justice.
The trial court's unappealed-from adjudication against the appellees in the action against them on a note, necessarily adjudicated against them also their third-party claim against the plaintiff's agent, whose acts in the capacity as agent were the basis of the third-party claim; therefore, the court erred in denying the prayers of the appellant's subsequent complaint in equity to set aside the default judgment against him on the third-party complaint.
On November 30, 1965, Ralston Purina Co. filed an action in Lumpkin Superior Court on a promissory note against Vernon L. Moose and Mrs. Edna Moose for the sum of $2,597.32 plus interest and attorney's fees. The Mooses filed their answer denying the indebtedness and asserted a counterclaim, which, as amended, alleged the plaintiff's indebtedness to them in the amount of $3,033.78. The court made Grady C. Fraser, a Hall County resident, a third-party defendant to the cause pursuant to the defendants' third-party complaint, which alleged that, at the time of the transactions alleged in the plaintiff's complaint, the third-party defendant was acting as agent for the plaintiff company "and for himself as his own agent," that certain representations were made to third-party plaintiffs by Fraser with which he failed to comply, and that, if he had so complied, the plaintiff company's claim against the defendant would have been paid. They prayed for the interpleading of the claims of the plaintiff and the third party defendant and for judgment against both of said parties in the sum of $3,033.78. Said pleading and order were served on third-party defendant on August 24, 1968. On September 10, 1968, a judgment signed on August 31 was entered as follows: "Pursuant to settlement agreed upon by the parties in the above stated case, it is now considered ordered and adjudged that Ralston Purina Company have and recover from Vernon L. Moose and Mrs. Edna Moose the sum of $2,600 and costs of court . . ." On February 24, 1969, the Mooses took a default judgment against Fraser alone on their third-party complaint, on which execution was issued and levied. On June 23, 1969, Fraser filed, in Lumpkin Superior Court, a complaint in equity to set aside the default judgment. Fraser appeals from the judgment of the court refusing to set aside the default judgment.
Since it appears from the allegations of the appellees' answer and counterclaim to Ralston Purina Company's action and their own third-party complaint that appellant Fraser professed to act as agent of Ralston Purina Co., the acts of appellant alleged in the above pleadings were the acts of that company as his disclosed principal, regardless of the form in which he acted. Code 4-304. Thus, the appellees' allegation in their third-party complaint, that appellant was acting both as a principal and as agent for Ralston Purina, was ineffectual as a matter of law to show such a dichotomy of his actions.
By the appellees' voluntary settling of Ralston Purina's contract action against them on the note and allowing judgment to be entered thereon against them unappealed from, the invalidity of all of appellees' defenses to the note was thereby established. Since the crux of their defenses was the acts of the plaintiff company's agent, the appellant, whose acts were as a matter of law those of the plaintiff principal, there remained no basis for a third-party claim either against the agent or against the agent and his principal jointly, arising out of these same acts. The appellees, having aided in procuring the court's judgment incorporating their voluntary settlement of the issues with the principal, were estopped thereafter to question or complain of the legal effect of the judgment thus invoked, or to make an inconsistent claim against that principal's agent, the appellant, by changing tactics and by procuring a judgment against the plaintiff principal and the appellant. See Saturday v. Saturday, 224 Ga. 236, 239 (161 SE2d 509) and cit.
Moreover, even if the third-party complaint could be construed as alleging liability for acts done independently of the agency, nevertheless it still could not be maintained, since the court had no jurisdiction of the nonresident third-party defendant and "there is no sound basis for allowing a third-party claim to support an original action of which the court would not have jurisdiction otherwise." 6 Encyclopedia of Federal Procedure 96, 17.17; 1A Barron & Holtzoff, Federal Practice and Procedure (Rules Ed., Wright), p. 664, 426.
Since the third-party claim was necessarily adjudicated against the appellees as a matter of law by the judgment against them in the plaintiff's action, it was not necessary either expressly to include in said judgment the third-party defendant by name or to make the express determination therein which is provided by Code Ann. 81A-154 (b) (Ga. L. 1966, pp. 609, 658) for situations wherein fewer than all of the claims presented are adjudicated. Under the facts and conclusions of law hereinabove stated, the appellant could not be held to have been negligent in failing to contest the third-party complaint, which failed to state a claim against him.
Since the third-party claim was correctly adjudicated against the appellees, it follows that the default judgment on the third party complaint was a nullity and should have been set aside by the trial court pursuant to the appellant's complaint in equity.
Judgment reversed. All the Justices concur.
Telford, Wayne & Stewart, Joe K. Telford, Smith & Smith, C. E. Smith, Jr., for appellees.
Robert E. Andrews, for appellant.
Friday May 22 16:43 EDT

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