Masters v. Pardue

91 Ga. App. 684 (1955)

86 S.E.2d 704

MASTERS v. PARDUE et al.

35475.

Court of Appeals of Georgia.

Decided February 23, 1955.

Rehearing Denied March 18, 1955.

*685 Irwin R. Kimzey, Kimzey & Kimzey, Herbert B. Kimzey, for plaintiff in error.

Kimzey & Crawford, contra.

FELTON, C. J.

The plaintiff sued United States Fidelity & Guaranty Company on a sheriff's official bond. The bond was a joint and several obligation, and the plaintiff had the right to proceed against the surety alone without joining the sheriff. Jefferson v. Hartley, 81 Ga. 716 (9 S. E. 174). The sheriff petitioned the court to be made a party defendant. The court by order made the sheriff a party defendant to the record; allowed him to file defensive pleadings, and to conduct himself as a party defendant during the trial; instructed the jury to return a verdict either for or against the "defendants"; and the jury returned a verdict for the "defendants." A vouchee may set up any defense which would tend to relieve either himself or the voucher from liability in the action then pending. Raleigh & Gaston R. Co. v. W. & A. R. Co., 6 Ga. App. 616 (65 S. E. 586); Acme Fast Freight, Inc. v. Sou. Ry. Co., 65 Ga. App. 647 (16 S. E. 2d 62). However, Code § 38-624, relating to vouchment, is not authority for making a vouchee a party defendant to the action against the wishes of the plaintiff. The sheriff cannot be considered an intervenor. "The only provisions in our Code for intervention are: as to creditors who may have claims to a fund raised by a creditor's bill, which is in the custody of the court (Civil Code § 4845) [Code § 24-2613], persons properly seeking to assert equitable remedies against assets in the hands of a receiver ( § 4903) [§ 24-2802], holders of liens on property in the hands of a receiver *686 (§ 4911) [§ 24-2810], and persons interested in funds in the hands of an officer, subject to distribution upon a money rule ( § 4776) [see § 24-1701]. It will be observed that the interventions referred to in our Code are not only confined to causes of an equitable nature, but they all have application to a res which is to be the subject matter, in the court's direction and judgment. We are not aware of any statute of this State by authority of which a person has the absolute right to intervene as a party defendant in an action [at law] in personam." Armour Car Lines v. Summerour, 5 Ga. App. 619, 622 (63 S. E. 667). For the rule in equity cases see Code § 37-1005.

The only questions resolved against a vouchee who is properly vouched into a case are the right of the plaintiff to recover and the amount recoverable. A judgment either for or against the vouchee cannot be entered in the case. The question of whether the vouchee is liable over to the voucher is still an open one. Armour Car Lines v. Summerour (supra) at p. 622. The plaintiff is in no way concerned with a vouchment. It is an estoppel principle involving only the voucher and vouchee. The right of the plaintiff to proceed solely against a surety alone on a joint and several obligation cannot be abridged by a vouchment between the surety and the principal.

It does not appear from the record that the error was harmless, and we cannot say as a matter of law that it was harmless.

The error rendered all further proceedings nugatory.

The court erred in making the sheriff a party defendant over the objection of the plaintiff.

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