Michaels v. Kessler , 191 Ga. App. 103 ( 1989 )

Carley, Chief Judge.

Ed Albright brought suit against appellant-defendants, seeking to recover on three promissory notes. Appellants subsequently filed a third-party action against appellee-third-party defendants. The trial court first granted a motion to sever and then granted a motion to dismiss appellants’ third-party action. Although the trial court’s orders left Albright’s main action against appellants pending, it directed the entry of final judgment pursuant to OCGA § 9-11-54 (b) and appellants have appealed the rulings of the trial court which were adverse to them.

1. The trial court’s granting of the motion to sever the third-party action is enumerated as error.

“Under [OCGA § 9-11-42 (b)] the court has a broad discretion in the matter of granting a motion for severance of a third-party claim ... for trial separately from that on the main issue, and that discretion will not be interfered with unless it appears to have been abused. [Cit.]” Southern Concrete Co. v. Carter Constr. Co., 121 Ga. App. 573, 575 (3) (174 SE2d 447) (1970). We find no reversible error in the trial court’s granting of the motion for severance. See generally Parks v. Consolidated Freightways, 187 Ga. App. 576, 577 (1) (370 SE2d 827) (1988).

2. The dismissal of appellants’ third-party action is enumerated as error.

“Impleader is ‘ “not a device for bringing into an action any controversy which may happen to have some relationship with it.” . . . (A) defendant connot assert an entirely separate claim against the third-party even though it arises out of the same general set of facts as the main claim. There must be an attempt to pass on to the third-party all or part of the liability asserted against the defendant (but not to tender the third party as a substitute defendant). [Cit.]’ [Cits.]” (Emphasis supplied.) Knapp v. Lolley, 177 Ga. App. 786, 787-788 (341 SE2d 306) (1986).

In Count I of their third-party complaint, appellants sought enforcement of an independent promise to be repaid such funds as they had advanced to appellee Aegean Atlanta Associates, Ltd. (Aegean). That those funds advanced by appellants to Aegean may represent the proceeds of the promissory notes which they executed in favor of Albright shows only that Count I of appellants’ third-party claim against appellees arose out of the same general set of facts as the main claim against appellants. It does not show that appellants’ third-party claim is in any way dependent upon the outcome of the main action against them. Appellees’ liability, if any, to repay funds advanced to Aegean by appellants is separate and in no way dependent upon appellants’ liability, if any, to repay such funds as they borrowed from Albright. If appellants were otherwise entitled to prevail, they could recover on the claim attempted to be asserted in their third-party complaint against appellees even if Albright did not recover against appellants in the main action. The trial court did not err in dismissing Count I of the third-party complaint which sought to enforce a direct liability owed to appellants rather than a secondary liability for all or part of the main claim on the promissory notes. See Knapp v. Lolley, supra; Dorsey Heating &c. Co. v. C. C. Dickson, Inc., 153 Ga. App. 599, 600 (2) (266 SE2d 282) (1980); Wolski v. Hayes, 144 Ga. App. 180 (240 SE2d 720) (1977).

The remaining counts of appellants’ third-party complaint likewise fail to allege appellees’ secondary liability for the liability on the promissory notes being asserted against appellants in the main action. There was no error in dismissing these remaining counts of the third-party action.

Judgment affirmed.

Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Pope, Benham and Beasley, JJ., concur. Sognier, J., dissents.