1. A plaintiff is not required to join all tortfeasors to re cover the damages sustained, nor may the plaintiff be compelled to bring in the other tortfeasors.
2. Permissive joinder may be authorized under Code Ann. 81A-120 ( 20 CPA; Ga. L. 1966, pp. 609, 631). An action ex contractu and ex delicto may also be had in one complaint, and while persons having a joint interest and persons who are not indispensable but who ought to be parties, if complete relief is to be accorded, may be made parties by the court, nevertheless, since the plaintiff is the master of his own lawsuit the court cannot meddle, requiring him to file an ex contractu action against other defendants when he is suing in tort against the named defendant.
North Carolina National Bank sued Peoples Bank of LaGrange for damages, alleging defendant had made false and fraudulent representations to it for the purpose of inducing plaintiff to make a loan to L. C. Robinson & Sons, Inc.; and alleging that the borrower was a customer of defendant, and was known by defendant to be in such grave financial condition that its survival was in danger; and alleging that it was advantageous to the defendant that the borrower receive the loan made to it by plaintiff. The indebtedness was in the form of a note executed by the borrower with personal guaranty of payment executed by its president. After maturity the note was not paid and plaintiff filed this suit against defendant. The defendant filed a petition to add indispensable parties under Code Ann. 81A-119 (Ga. L. 1966, pp. 609, 630) to wit: L. C. Robinson & Sons, Inc., an Alabama corporation, and G. E. Robinson, its president, as parties defendant. Defendant alleged that no action has been brought against said new parties defendant to collect the amount due on the note; and, that, for the parties in this action to obtain complete relief, it is necessary they be made defendants. These new parties consented to being added. The defendant bank filed an answer, denying the material portions of the complaint. An affidavit in support of the motion to add indispensable parties was executed by Gerson E. Robinson deposing that he is one and the same person as G. E. Robinson; that he executed the note individually and as president of L. C. Robinson & Sons, Inc.; that the corporation is indebted to the plaintiff as set forth therein; that he is personally liable for the payment of same as endorser; that he is not insolvent; and that the corporation is not a bankrupt.
The court ordered that these new parties be made defendants, in order that complete relief be accorded. The court also ordered that the plaintiff file an amended complaint naming these parties as defendants. The appeal is from this judgment.
When may new parties be made and joined in an action; and when may the trial court require such additional parties?
The answer to these two questions will be found in Code Ann. 81A-119 (a) and (b), and Code Ann. 81A-123 (Ga. L. 1966, pp. 609, 630, 632). Code Ann. 81A-119 (a) provides: "(a) Subject to the provisions of section 81A-123 and of sub-division (b) of this section, persons having a joint interest shall be made parties and be joined on the same side as plaintiffs or defendants." (Emphasis supplied.) Code Ann. 81A-119 (b) provides: "When persons who are not indispensable, but who ought to be parties if complete relief is to be accorded between those already parties, have not been made parties and are subject to the jurisdiction of the court, the court shall order them summoned to appear in the action. The court in its discretion may proceed in the action without making such persons parties, if its jurisdiction over them can be acquired only by their consent or voluntary appearance; but the judgment rendered therein does not affect the rights or liabilities of absent persons."
Code Ann. 81A-123 (a) provides: "If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued, when the character of the right sought to be enforced for or against the class is: (1) Joint, or common, or secondary in the sense that the owner of a primary right refuses to enforce that right and a member of the class thereby becomes entitled to enforce it; (2) Several, and the object of the action is the adjudication of claims which do or may affect specific property involved in the action." (Emphasis supplied.)
Here, the situation is not within the purview of these two statutes. It is not shown that the new parties defendant have a "joint interest" so as to be subject to Code Ann. 81A-119.
Robinson & Sons, Inc. and G. E. Robinson) sought to be brought in by the defendant bank are not necessary or indispensable parties.
"The principles applicable to a determination of whether a party is merely proper or whether he is one who should be joined because a necessary or indispensable party are comparatively simple. They revolve about the question of interest in the controversy. Persons who may be joined under Rule 20 because of an interest in a question of law or fact are proper parties, but they are not necessary or indispensable. Tortfeasors are not indispensable or necessary to all action against one of their number, because their liability is both joint and several." 3A Moore's Federal Practice 2226, 19.07.
Code Ann. 81A-120 deals with permissive joinder of parties. It is for the plaintiff to say whether he waists to sue other defendants.
"Joinder is at the option of the plaintiffs; it cannot be demanded as a matter of right by the defendant." 3A Moore's Federal Practice 2774, 20.05.
"One is not required to join all joint tortfeasors in one suit to recover the damage sustained; there is no right on the part of one joint tortfeasor who is sued for the joint tort to compel the plaintiff to bring in other tortfeasors." 59 AmJur2d 541, 124.
It is not shown that this is an action where the owner of the primary right refuses to enforce it, and a member of a class thereby becomes entitled to enforce same; nor is it a several action whereby specific property is affected, so as to make Code Ann. 81A-123 apply.
The court erred in issuing the order requiring plaintiff to bring these new parties into the case as defendants and ordering the plaintiff to amend its pleadings accordingly.
STOLZ, Judge, dissenting.
81A-119 (b)) covering conditionally necessary parties, wherein it is provided: "When persons who are not indispensable, but who ought to be parties if complete relief is to be accorded between those already parties, have not been made parties and are subject to the jurisdiction of the court, the court shall order them summoned to appear in the action. The court in its discretion may proceed in the action without making such persons parties, if its jurisdiction over them can be acquired only by their consent or voluntary appearance; but the judgment rendered therein does not affect the rights or liabilities of absent persons."
The record discloses that L. C. Robinson & Sons, Inc. is an Alabama corporation with its principal office and place of business in Troup County, Georgia, and that G. E. Robinson is a resident of Troup County, Georgia. Thus, both are subject to the jurisdiction of the Superior Court of Troup County and are "conditionally necessary parties" if "complete relief is to be accorded between those already parties" under CPA 19 (b) (Code Ann. 81A-119 (b)).
The Civil Practice Act also provides that parties defendant also may be joined in one action "if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences, and if any question of law or fact common to all of them will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given . . . against one or more defendants according to their respective liabilities." CPA 20 (a) (Code Ann. 81A-120 (a)).
The majority opinion succinctly sets forth the contentions of the plaintiff and the defendant. I would but mention that the plaintiff has yet to bring an action on its allegedly past due note, to say nothing of reducing it to judgment and attempting to collect it through levy. The defendant and the debtors deny that the debtors are insolvent. If the debtors are solvent and the debt collectible, how could the defendant bank have defrauded the plaintiff? If the debtors are insolvent, why go through two trials to resolve these issues? The debtors are subject to the jurisdiction of the court and are willing to be joined as parties to the action. The trial court found that "they (debtors) are necessary parties if complete relief is to be accorded between those already parties." Thus, the requirements of CPA 19 (b) (Code Ann. 81A-119 (b)) are squarely met.
The provisions of the Civil Practice Act are to be construed "to secure the just, speedy, and inexpensive determination of every action." CPA 1 (Code Ann. 81A-101).
Even if L. C. Robinson & Sons, Inc., and G. E. Robinson are not essential parties (CPA 19 (a); Code Ann. 81A-119 (a)) they occupy at least the status of persons who ought to be parties "if complete relief is to be accorded between those already parties" and whom, if "subject to the jurisdiction of the court," the court has the authority to order to appear in the action (conditionally necessary parties). Further, "parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action on such terms as are just." CPA 21 (Code Ann. 81A-121). See also CPA 22 (Code Ann. 81A-122); Leon Investment Co. v. Independent Life &c. Ins. Co., 123 Ga. App. 668 (182 SE2d 151)
. There is nothing in the record to suggest that it would be unjust or unfair to permit the joinder of L. C. Robinson & Sons, Inc., and G. E. Robinson as parties defendant in this case.
The opinion of the majority is all invasion of the discretion given the trial court under the Civil Practice Act. If the trial court is not to be permitted to exercise its discretion to add these parties as defendants in this case, when can it possibly be permitted to do so? This case presents the classic example of the opportunity afforded by the Civil Practice Act to bring all parties at interest before the court and resolve all issues in one case and thus avoid a multiplicity of suits. The net effect of the majority decision for all intents and purposes, is to disembowel the joinder provisions of the Civil Practice Act and make them utterly meaningless. I must respectfully dissent.
I am authorized to state that Chief Judge Bell and Judges Quillian and Clark concur in this dissent.