Hamner v. Johnson , 100 Ga. App. 1 ( 1959 )

100 Ga. App. 1 (1959) 109 S.E.2d 881

HAMNER
v.
JOHNSON et al.

37770.

Court of Appeals of Georgia.

Decided July 16, 1959.

J. Ray Merritt, for plaintiff in error.

Wheeler, Robinson & Thurmond, Emory F. Robinson, Joseph E. Cheeley, contra.

FELTON, Chief Judge.

The judgment of the Supreme Court transferring this case to this court necessarily adjudicated the proposition that no equitable issue was involved in the amendment to the answer seeking to have E. E. Robinson made a party defendant either on the theory that a multiplicity of suits would be avoided or for any other reason. We know of no authority of law and none has been cited by the plaintiff in error, to the effect that in a law case such as this a party defendant could be added on petition of an existing defendant. Code § 37-1005 applies only to equity cases. The same is true as to the cases of O'Leary v. Costello, 169 Ga. 754, 758 (151 S.E. 487) and Roberts v. McBrayer, 194 Ga. 606, 613 (22 S.E.2d 165). Code § 37-1007 does not apply in this case at least by reason of the transfer of the case to this court. The provisions of Code §§ 3-401 — § 3-419, providing for the making of parties pending action, do not apply to cases like the instant one. Code § 81-1303 provides: "No amendment adding a new and distinct cause of action or new and distinct parties shall be allowed unless expressly provided for by law." The court did not err in sustaining the general demurrers to the amendment seeking to make E. E. Robinson a party defendant.

Judgment affirmed. Quillian and Nichols, JJ., concur.