Burt v. Long

Hall, Presiding Judge.

In a suit on a note, the third-party defendant appeals from the denial of his motions to dismiss and for judgment on the pleadings. His basic contention is that he has been tendered as a substitute defendant under the third-party plaintiff’s pleadings.

The confusion results because both in his answer to the main complaint and in his third-party complaint, the defendant alleges an oral transaction among all the parties here involving payment on the note. This is offered as a defense to the main action. However, if this defense is rejected to the suit on the note, the same transaction (if proved) would make third-party defendant liable to defendant for any judgment against him. Code Ann. § 81A-114 (a); Koppers Co. v. Parks, 120 Ga. App. 551 (171 SE2d 639).

The case of S. M. & M. Realty Corp. v. Highlands Ins. Co., 123 Ga. App. 170 (179 SE2d 781) is distinguishable. There the third-party defendant was the assignor of the plaintiff so that, in effect, the allegations of the defense and third-party complaint were asserted against the same person. There is no such relationship between the respective parties here. Also distinguishable is Mathews v. McConnell, 124 Ga. App. 519 (184 SE2d 491). In that case, the allegations of the third-party complaint did not involve the same subject matter as the original action.

If the third-party defendant is not retained in this action and plaintiff receives a judgment, the evidence of the transaction will have to be reduplicated in another lawsuit. The purpose of third-party practice is to avoid this very result. See 3 Moore’s Federal Practice 503, § 14.05[1].

Judgment affirmed.

Panned and Quillian, JJ., concur. Submitted January 7, 1972 Decided January 27, 1972. Fredericks, Jones & Wilbur, Carl Fredericks, for appellant. Custer, Smith & Manning, Donald D. Smith, George W. Carreker, for appellees.