North Carolina National Bank v. Peoples Bank , 127 Ga. App. 372 ( 1972 )

Evans, Judge.

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.

Code Ann. § 81A-119 deals with necessary and indispensable parties and the two proposed new defendants (L. C. 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 an action against one of their number, because their liability is both joint and several.” 3A Moore’s Federal Practice 2226, § 19.07[1].

Code Ann. § 81A-120 deals with permissive joinder of parties. It is for the plaintiff to say whether he wants 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.

Judgment reversed.

Hall, P. J., Eberhardt, P. J., Pannell and Deen, JJ., concur. Bell, C. J., Quillian, Clark and Stolz, JJ., dissent.