Southeastern Erection Co. v. Flagler Co. , 108 Ga. App. 831 ( 1964 )

Ebbrhardt, Judge.

This case raises the issue of whether a codefendant in a tort action has standing to oppose a motion for 'summary judgment made by the other codefendant. It is urged that the other codefendant is not, relative to that proceeding, an adverse party, but we do not think that a fair interpretation of the Act. The Summary Judgment Act (Code Ann. § 110-1201, et seq.) specifically makes reference to the “party opposing the motion” but nowhere defines that party as being either a plaintiff or defendant. Nor does the provision for review of an order granting the motion (Code Ann. § 110-1208) limit the right to one occupying the status of plaintiff if the judgment is in favor of a defendant, or vice versa.

It may be suggested that the subtitles to Code Ann. §§ 110-1201, 110-1202 indicate that the summary judgment procedure is limited or restricted to situations between tbe plaintiff and defendant. But these were not a part of the Act of 1959, p. 234.

There is, however, a fundamental and basic reason why a joint tortfeasor who is a codefendant in a negligence action cannot, in the posture here, have reviewed the .grant of a summary judgment in favor of another defendant. The error, if any, must be one that adversely affects some right that he may have. It is elemental and quite obvious that no matter how erroneous the grant of the summary judgment may be as to the plaintiff, the codefendant will not be heard to complain or except on that ground.

If Southeastern has any basis for complaint against the granting of the order it can arise only because they are joint tortfeasors and it has a right of contribution from Flagler. Provision for recovery by the plaintiff against joint tortfeasors is made in Code § 105-2011, and the right of contribution as between them is established by Code § 105-2012,¹ changing the common law rule that one joint tortfeasor could have no right of contribution from the other. Southern R. Co. v. City of Rome, 179 Ga. 449 (176 SE 7). Enforcement of the right is provided by Code § 37-303 which, though not making reference to “joint trespassers” or “joint tortfeasors” as such, does provide for both situations ex contractu and ex delicto by the language “In cases of joint, joint and several, or several liabilities of two or more persons, where all are equally bound to bear the common burden, etc.” Southern R. Co. v. City of Rome, 179 Ga. 449, 452, supra.

If then, Southeastern had a right of contribution from Flagler when summary judgment was granted in Flagler’s favor it would of necessity follow that its right was adversely affected by that action, and must be afforded the further right of review; but if it had no right to be adversely affected then no right of review exists, for it is fundamental that no one whose right has not in some way been adversely affected thereby can demand and have review of a judgment. Townsend v. Davis, 1 Ga. 495; H. W. Brown Transp. Co., Inc. v. Edgeworth, 90 Ga. App. 728, 729 (84 SE2d 103). Any other rule would result in requiring the appellate court to consume its time in deciding moot questions.

Here there has been no trial of the case resulting in a judgment against either or both defendants. No liability against either of them has, as yet, been established. While Flagler escapes on the basis of the summary judgment, there is no certainty that Southeastern will not enjoy a like result at the hands of the jury.

“The [Code] sections certainly provide for contribution among joint trespassers against whom a judgment has been entered, and to this extent change the common law, . . . and it is clear that they provide for the right of contribution only among those who are sued and against whom judgment has been rendered.” (Emphasis supplied). Mashburn & Co. v. Dannenberg Co., 117 Ga. 567, 582 (44 SE 97). That no judgment has been rendered or entered against Southeastern and Flagler as joint tortfeasors is sufficient reason why no right of review exists on the part of Southeastern. But if more were needed it is to be found in the further assertion of the court in Mashburn, supra, that: “The right of contribution among joint tortfeasors is absolutely dependent upon the right of election which the law gives the plaintiff. It exists among those whom he elects to sue jointly, and does not exist as to those whom he fails to join as defendants to the suit.” Most assuredly this rule applies with equal force when the plaintiff sues the joint tortfeasors together but elects to dismiss as to one of them, as happened in Mashburn, and in H. W. Brown Transp. Co. Inc. v. Morrison, 89 Ga. App. 107 (78 SE2d 856), or where one secures the sustaining of a general demurrer as to himself, Penland v. Jackson, 157 Ga. 569 (122 SE 44); Moore v. Harrison, 202 Ga. 814, 818 (44 SE2d 551), or has his plea to the jurisdiction sustained, H. W. Brown Transp. Co. Inc. v. Edgeworth, 90 Ga. App. 728, supra. Since the plaintiff here elected not to except to the grant of summary judgment in Flagler’s favor the effect is the same as if Flagler had never been named as a defendant in the suit, or there had been a voluntary dismissal as to it.

And for the reason that at the time of the consideration of Flagler’s motion for summary judgment Southeastern had no right existing that could be adversely affected by it, there was no error in the refusal of the trial court to consider the affidavits submitted by it in opposition.

This is not to say, of course, that when the case comes on for trial before a jury Southeastern can not offer evidence tending to show" that plaintiff’s injury resulted from some negligent act of Flagler—whether Flagler is in the case as a defendant at that time or not. But that is for an entirely different reason. The purpose of the evidence then will be to mitigate or escape liability on its part. That does not rest upon any right of contribution.

There may well be instances in which a codefendant does have some existing right that will be adversely affected by the grant of summary judgment in favor of another, and, if so, his affidavits in opposition ought to be considered. In that circumstance if the judgment is granted a right of review at the proper time must follow. But we do not deal with that kind of situation here.

The result here illustrates the desirability and advantage that might accrue from the adoption of a third party practice such as obtains under the Federal Rules of Civil Procedure (See Rule 14). If it were adopted rights would arise as between coplaintiffs and codefendants which do not exist under our present practice, including, perhaps, the right to except in instances such as are here presented.

The language of the Summary Judgment Act is, it seems to us, drawn so that it will be compatible with a third party practice if and when that is adopted in Georgia—a compatibility similar to that which exists between Rules 14 and 56 of the Rules of Federal Procedure.

Writ of error dismissed.

Nichols, P. J., Bell, P. J., Jordan, Hall, Bussell and Pannell, JJ., concur. Frankum, J., concurs in the judgment or result reached. Felton, C. J., concurs specially.

1 “Trespass” is the equivalent of “tort” and “joint trespassers” is equivalent to “joint tortfeasors.” The terms are often used interchangeably. Cox v. Strickland, 120 Ga. 104, 107 (47 SE 912, 1 AC 870). And see Art. VI, Sec. XIV, Par. IV (Code Ann. § 2-4904) of the Constitution.