GA Code § 9-10-13 (2021)
2021 Georgia Code|Title 9 - Civil Practice|Chapter 10 - Civil Practice and Procedure Generally|Article 1 - General Provisions|§ 9-10-13. Effect of Judgment on Party Vouched Into Court

 Where a defendant may have a remedy over against another person and vouches him into court by giving notice of the pendency of the action, the judgment rendered therein shall be conclusive upon the person vouched, as to the amount and right of the plaintiff to recover.   (Civil Code 1895, § 5234; Civil Code 1910, § 5821; Code 1933, § 38-624.)   Law reviews.   - For article comparing the Federal Rules of Civil Procedure to Georgia trial practice procedures prior to the adoption of the Georgia Civil Practice Act (Ch. 11 of this title), see 1 Ga. St. B.J. 315 (1965). For article comparing sections of the Georgia Civil Practice Act (Ch. 11 of this title) with preexisting provisions of the Georgia Code, see 3 Ga. St. B.J. 295 (1967). For article discussing aspects of third party practice (impleader) under the Georgia Civil Practice Act (Ch. 11 of this title), see 4 Ga. St. B.J. 355 (1968).   JUDICIAL DECISIONS    This section is not of statutory origin, but is simply an adaptation of language employed by the Supreme Court in the cases of Western & Atl. R.R. v. City of Atlanta, 74 Ga. 774 (1885); Faith v. City of Atlanta, 78 Ga. 779, 4 S.E. 3 (1887); Usry v. Hines-Yelton Lumber Co., 176 Ga. 660, 168 S.E. 249 (1933); Loeb v. May, 186 Ga. 742, 198 S.E. 785 (1938).    This section is merely statement of well-known common-law principle, and it was not intention of codifiers to hedge it about with any unusual limitations or give to it any additional scope. Usry v. Hines-Yelton Lumber Co., 176 Ga. 660, 168 S.E. 249 (1933); Loeb v. May, 186 Ga. 742, 198 S.E. 785 (1938) (see O.C.G.A. § 9-10-13).   Section not superseded by third-party practice rule.    - The vouchment procedure authorized by O.C.G.A. § 9-10-13 has not been superseded by the third-party practice rule of the Civil Practice Act. Hardee v. Allied Steel Bldgs., Inc., 182 Ga. App. 587, 356 S.E.2d 682 (1987).    Purpose of vouching is to enable vouchee to come in and present any defense which would tend to relieve either the vouchee or the voucher from liability in the pending action. Acme Fast Freight, Inc. v. Southern Ry., 65 Ga. App. 647, 16 S.E.2d 62 (1941), rev'd on other grounds, 193 Ga. 598, 19 S.E.2d 286 (1942).    The object to be gained by vouching is an end of litigation, and if the act of the vouchee is the real thing complained of, so that, if there is a recovery by the injured party against the voucher, the injured party can turn right around and claim indemnity from the vouchee, then it is to the interest of the state that a multiplicity of actions should be avoided by requiring the vouchee to appear in the original action and set up any defense which the vouchee has. Acme Fast Freight, Inc. v. Southern Ry., 65 Ga. App. 647, 16 S.E.2d 62 (1941), rev'd on other grounds, 193 Ga. 598, 19 S.E.2d 286 (1942).    Underlying purpose of this section is to conclude vouchee upon question of the voucher's liability to the original plaintiff and the amount of such liability, thus leaving for future determination only the one other question as to whether the vouchee is in fact liable over to the vouching defendant. Southern Ry. v. Acme Fast Freight, Inc., 193 Ga. 598, 19 S.E.2d 286 (1942) (see O.C.G.A. § 9-10-13).    The term "vouch" as used in this section means to call into court to warrant and defend, or to make good a warranty of title, as in a fine and recovery. Loeb v. May, 186 Ga. 742, 198 S.E. 785 (1938) (see O.C.G.A. § 9-10-13).    A vouchee is not a party defendant. Clary Appliance & Furn. Ctr., Inc. v. Butler, 139 Ga. App. 233, 228 S.E.2d 211 (1976).   Burden on voucher to show necessary relationship between voucher and vouchee.    - The relationship between the voucher and the vouchee may arise by contract, express or implied, or by operation of law; the voucher, notwithstanding the judgment in a first action, still has the burden of showing that the vouchee bears that necessary relationship to the voucher and to the cause of action, as asserted in the original action, essential to give an action over, and the vouchee may defend by showing anything which will negative the right of an action over. Phelps v. House, 67 Ga. App. 872, 21 S.E.2d 522 (1942).    Under this section it must appear that liability of vouchee arises from identical cause of action upon which the voucher is in danger of being held liable, or that the ground of the liability arises from the same subject-matter. Raleigh & G.R.R. v. Western & Atl. R.R., 6 Ga. App. 616, 65 S.E. 586 (1909) (see O.C.G.A. § 9-10-13).   Plaintiff must establish liability against voucher before relief allowed against vouchee.    - In action in which plaintiff proceeds only against a county, but alleges facts under which the county may vouch the State Highway Department (now Department of Transportation) into court in order that it shall defend the suit and be responsible for any damages awarded against the county, the plaintiff is bound to establish liability against the county under existing laws before the plaintiff is entitled to any recovery or relief against the State Highway Department. Felton v. Macon County, 43 Ga. App. 651, 159 S.E. 730 (1931).   Defendant may vouch another to defend act not of defendant's doing.    - If a party is obliged to defend against the act of another against whom the party has a remedy over, and defends solely and exclusively the act of such other party and is compelled to defend no misfeasance of the party's own, the party may notify such party of pendency of the action and may call upon the party to defend it; but this principle does not apply where one is defending one's own wrong, or one's own contract, although another party may be responsible to that person. Usry v. Hines-Yelton Lumber Co., 176 Ga. 660, 168 S.E. 249 (1933).    Right of voucher has been particularly applied to tort cases where liability of party vouching arises merely from some negative act of omission, and the proximate cause of the injury, as between the voucher and the vouchee, is some positive act or primary duty and responsibility of the vouchee. Cook v. Pollard, 50 Ga. App. 752, 179 S.E. 264 (1935).   Prerequisite for a vouchment.    - Before a person can be properly vouched, the action between the injured party and the voucher must be of such a kind that the vouchee could set up therein any defense which the vouchee could set up if the action were proceeding against the vouchee directly. Acme Fast Freight, Inc. v. Southern Ry., 65 Ga. App. 647, 16 S.E.2d 62 (1941), rev'd on other grounds, 193 Ga. 598, 19 S.E.2d 286 (1942).   Required aspects of remedy over before a vouchment is authorized.    - To authorize the voucher to give the vouchee notice of pendency of the action and require the vouchee to defend it so that the judgment obtained therein will be conclusive upon vouchee as to the amount and the right of the original plaintiff to recover, there must be such a remedy over against vouchee as that issues in the two actions would be practically identical, both on the question of liability and on the question of amount of damages, and there must at least be such a relation between parties that defenses which vouchee could set up in the original action would be the same defenses that the vouchee could set up if the vouchee were sued by the voucher. Usry v. Hines-Yelton Lumber Co., 176 Ga. 660, 168 S.E. 249 (1933); Southern Ry. v. Acme Fast Freight, Inc., 193 Ga. 598, 19 S.E.2d 286 (1942).   Prior judgment conclusive on vouchee only as to correctness of judgment.    - Under this section, judgment in a prior action is conclusive on the person vouched as to the correctness of the judgment, but is not conclusive of the fact that there is such a relationship between the person vouched and the person vouching as that a right of action over exists. Central of Ga. Ry. v. Macon Ry. & Light Co., 9 Ga. App. 628, 71 S.E. 1076 (1911) (see O.C.G.A. § 9-10-13).   Plaintiff in second action estopped from showing causes alleged in prior action untrue.    - Where a right of action over against a third person is asserted by the defendant in a prior tort action who has been compelled by the judgment thereon to pay damages, the plaintiff in the second action is estopped from showing that the causes alleged in the prior action were not the true causes of the damage. Central of Ga. Ry. v. Macon Ry. & Light Co., 9 Ga. App. 628, 71 S.E. 1076 (1911), later appeal, 140 Ga. 141, 78 S.E. 935 (1913), 23 Ga. App. 472, 98 S.E. 407 (1919).    Judgment in first action is not adjudication of question whether primary defendant is entitled to recover against a vouchee upon an action brought by the primary defendant against the latter after a recovery has been had in the first action. Charleston & W.C. Ry. v. Union Whse. & Compress Co., 139 Ga. 20, 76 S.E. 360 (1912); Southern Ry. v. Acme Fast Freight, Inc., 193 Ga. 598, 19 S.E.2d 286 (1942); Smith v. Transamerica Ins. Co., 218 Ga. App. 839, 463 S.E.2d 711 (1995).   Burden on voucher of showing responsibility of vouchee by extrinsic proof.    - By its terms this section has no application so as to bind the vouchee unless the defendant in the former action was entitled to a remedy over against the vouchee, and whether the defendant was so entitled is a question not settled by the former judgment; the voucher still has the burden of showing that the vouchee is responsible over to the voucher, and to do this will require allegation and proof of extrinsic matter, unless the record in the former action may suffice to establish such responsibility. Bryant v. Guaranty Life Ins. Co., 40 Ga. App. 573, 150 S.E. 596 (1929) (see O.C.G.A. § 9-10-13).    Only a person against whom defendant has remedy over is, as vouchee, bound by judgment which may be rendered against the defendant. May v. Loeb, 57 Ga. App. 788, 196 S.E. 268, aff'd, 186 Ga. 742, 198 S.E. 785 (1938), later appeal, 60 Ga. App. 862, 5 S.E.2d 432 (1939).    Under vouchment, the vouchee is bound by the judgment if a right over is established. Dodge Trucks, Inc. v. Wilson, 140 Ga. App. 743, 231 S.E.2d 818 (1976), aff'd, 238 Ga. 636, 235 S.E.2d 142 (1977).   Vouchee bound by prior judgment with respect to any defense proffered or possible.    - By the terms of this section, when a person against whom a defendant has a remedy over has been vouched, and such remedy over has been established by aliunde proof, the vouchee is bound by the previous judgment establishing the liability of the original defendant and the amount thereof; and this is true with respect to any and all defenses which the voucher or vouchee either made or could have made to prevent a recovery by the plaintiff in the former action. Southern Ry. v. Acme Fast Freight, Inc., 193 Ga. 598, 19 S.E.2d 286 (1942) (see O.C.G.A. § 9-10-13).   Properly notified vouchee bound by judgment regardless of whether vouchee defends or not.    - When the vouchee has been properly notified, the vouchee may come in and defend, or the vouchee may refrain - but in either event, the vouchee is bound by the result as to the right of the plaintiff to recover and as to the amount. Register v. Stone's Indep. Oil Distribs., 122 Ga. App. 335, 177 S.E.2d 92 (1970), rev'd on other grounds, 227 Ga. 123, 179 S.E.2d 68 (1971).   Prior judgment not determinative of validity of voucher's claim against vouchee.    - The mere avouchment of a third person by a defendant under the claim of a remedy over against the vouchee, and the failure of the vouchee to respond, does not adjudicate the validity of such claim of the voucher against the vouchee; the previous judgment does not determine whether the voucher's claim over against the vouchee was in fact good or bad. Southern Ry. v. Acme Fast Freight, Inc., 193 Ga. 598, 19 S.E.2d 286 (1942).   Person not having right to defend is not vouchee.    - A vouchee is not a stranger to the pending action, and, for the principles of this section to become applicable, it must appear that the vouchee has the same means of defeating recovery as if the vouchee were the real party of record; consequently, if the vouchee does not have the right to defend, the vouchee does not, in fact, become a vouchee. Blankenship v. Smart, 102 Ga. App. 666, 117 S.E.2d 257 (1960).   Passive vouchee not permitted to question judgment in original action.    - The vouchee acts at the vouchee's peril in failing to come in and defend to the extent that if, after being vouched, the vouchee fails to respond or refuses to protect the vouchee's interest and should thereafter be held liable over to the voucher, the vouchee will not thereafter be permitted to question the amount and right of the plaintiff to recover in the original action, but while, under the language of this section, the vouchee is thus precluded from contesting these questions, the burden is still on the voucher to establish by aliunde proof the voucher's remedy over against the vouchee in order to utilize the vouchee's inability to deny that the voucher was liable as adjudged in the original action. Southern Ry. v. Acme Fast Freight, Inc., 193 Ga. 598, 19 S.E.2d 286 (1942) (see O.C.G.A. § 9-10-13).   Vouchee bound by prior judgment as to the vouchee's liability over to voucher.    - The vouchee, under the particular facts of a case, may be concluded by the original action as to the additional question of the vouchee's own liability over to the voucher, as where, upon being vouched into court, the vouchee's response as made by the vouchee's own pleading or the vouchee's actual procedure in the vouchee's conduct of the case necessarily establishes the vouchee's own liability over to the original defendant for any recovery which might be had against that defendant. Southern Ry. v. Acme Fast Freight, Inc., 193 Ga. 598, 19 S.E.2d 286 (1942).    Only questions resolved against properly vouched vouchee are right of plaintiff to recover and amount recoverable; a judgment either for or against the vouchee cannot be entered in the case. Masters v. Pardue, 91 Ga. App. 684, 86 S.E.2d 704, aff'd, 211 Ga. 772, 88 S.E.2d 385 (1955).    Vouchment proceedings require bringing of second action to determine liability over of vouchee to voucher, since there is no procedural device available whereby the vouchee's liability over can be determined in the plaintiff's action against the voucher. Register v. Stone's Indep. Oil Distribs., 122 Ga. App. 335, 177 S.E.2d 92 (1970), rev'd on other grounds, 227 Ga. 123, 179 S.E.2d 68 (1971).    Right over is established by separate action against vouchee for contribution or indemnity whether the relationship is contractual or noncontractual. Dodge Trucks, Inc. v. Wilson, 140 Ga. App. 743, 231 S.E.2d 818 (1976), aff'd, 238 Ga. 636, 235 S.E.2d 142 (1977).   Nature of notice to vouchee.    - When it is sought to bind a third party by a judgment in action to which the third party is not a party, the third party should be given a formal notice with a demand that the third party appear and defend, and this should involve the right of the party vouched not only to appear, but also to take charge of and direct the litigation; a mere notice, unless it involves the right to direct the defense, is little more than an empty gesture, since the voucher and the vouchee and their counsel may differ as to the proper method of defense. Loeb v. May, 186 Ga. 742, 198 S.E. 785 (1938).   Conduct of defendant not constituting collusion insufficient to relieve vouchee of judgment's effect.    - Mere acts or conduct of the defendant which do not constitute collusion or negligence causing the judgment to be rendered against the defendant, but which are mere acts or conduct on the part of the defendant which, when appearing in evidence on the trial, are sufficient to influence the jury in rendering judgment against the defendant, do not relieve the vouchee of the binding force and effect of the judgment as against the vouchee. May v. Loeb, 57 Ga. App. 788, 196 S.E. 268, aff'd, 186 Ga. 742, 198 S.E. 785 (1938), later appeal, 60 Ga. App. 862, 5 S.E.2d 432 (1939).   Error to deny plaintiff's showing prior judgment in action in which plaintiff was vouchee.    - Where the plaintiff has introduced the record of a former action by defendant against a third party and relies thereon as a former adjudication, it is error to refuse to allow the plaintiff to show that, under notice from the third party, who had a remedy over against the plaintiff, the plaintiff had been vouched into court in the former action and had participated therein in person and by attorney; this evidence was relevant to show that the judgment, though rendered in an action to which the plaintiff was not originally a party, was nevertheless conclusive as between the plaintiff and defendant. Monroe v. Fourakers, 117 Ga. 901, 45 S.E. 240 (1903).   Showing of action over against vouchee required before invoking prior judgment as estoppel.    - Where one of the parties to an action vouches a third person to participate in the action on the ground that he is a party at interest, before the voucher can invoke the judgment in that case as an estoppel against the vouchee in a subsequent action instituted between these two, it must aliunde appear that as to the cause of action upon which, by legal necessity, the original judgment was based, the voucher in fact had an action over against the vouchee, except in those cases where the prior judgment necessarily, under the particular facts, also establishes this relationship. McArthor v. Ogletree, 4 Ga. App. 429, 61 S.E. 859 (1908).   No error in introducing prior judgment against vendee of stolen car in action against vendor.    - There is no error in introducing a judgment against a vendee of a stolen car and taking the car away from the vendee in an action by the vendee against the vendor for the purchase money, where the vendee gave the vendor notice of the former action and the vendor failed to defend. Barrett v. Miller, 36 Ga. App. 48, 135 S.E. 111 (1926).    Right of vouchee will extend to vendee of personal property who is sued in trover by plaintiff claiming paramount title antedating the sale to the vendee. Cook v. Pollard, 50 Ga. App. 752, 179 S.E. 264 (1935).   Adverse prior judgment conclusive against vouched vendor on question of title.    - Where the vendee has vouched the vendor into court by timely notice, giving the vendor an opportunity to defend the action, a judgment rendered in favor of the claimant of the title will conclusively bind the vendor on the question of title in a subsequent action by the vendee against the vendor upon the implied warranty of title. Cook v. Pollard, 50 Ga. App. 752, 179 S.E. 264 (1935).   County commissioners not authorized to vouch third party in mandamus proceeding.    - There is no provision of law which authorizes defendant county commissioners, in mandamus proceeding to compel payment to sheriff for services rendered, to vouch into court a third party. Lewis v. Gay, 215 Ga. 90, 109 S.E.2d 268 (1959).    Right of voucher does not include the right of volunteering to become a defendant, when no notice has been given by the defendant and when the plaintiff has not asked such a one to be made a party defendant. Armour Car Lines v. Summerour, 5 Ga. App. 619, 63 S.E. 667 (1909).    This section is not authority for making vouchee a party defendant to action against wishes of the plaintiff. Masters v. Pardue, 91 Ga. App. 684, 86 S.E.2d 704, aff'd, 211 Ga. 772, 88 S.E.2d 385 (1955) (see O.C.G.A. § 9-10-13).   Vouchee not permitted to be made defendant of record over objection of plaintiff.    - A vouchee may set up any defense which would tend to relieve the vouchee from liability in the pending action, but the vouchee may not be made a party defendant of record over the objection of the plaintiff. Blankenship v. Smart, 102 Ga. App. 666, 117 S.E.2d 257 (1960).    Generally speaking, one of two or more joint wrongdoers has no right of action over against those connected with the wrongdoer in the tort for either contribution or indemnity where the wrongdoer alone has been compelled to satisfy the damages resulting from the tort. Central of Ga. Ry. v. Macon Ry. & Light Co., 9 Ga. App. 628, 71 S.E. 1076 (1911).   City as joint tort-feasor has right of contribution over against property owner.    - Status of joint tort-feasor is not such as would prevent a city from having the right of contribution over against a property owner. Schneider v. City Council, 118 Ga. 610, 45 S.E. 459 (1903); Scearce v. Mayor of Gainesville, 33 Ga. App. 411, 126 S.E. 883, cert. denied, 33 Ga. App. 829 (1925).   Determination of liability in advance of original action not permitted.    - No provision of law exists by which the vouchee can, by petition to the presiding judge, have the question of its liability ever determined in advance of the original action. Charleston & W.C. Ry. v. Union Whse. & Compress Co., 139 Ga. 20, 76 S.E. 360 (1912).   Defendant in action ex contractu four years after injury cannot vouch another liable in tort.    - When more than four years have elapsed before the bringing of an action, it is too late for one who is sued for liability arising out of a contract to vouch another who is liable to that person in tort. Raleigh & G.R.R. v. Western & Atl. R.R., 6 Ga. App. 616, 65 S.E. 586 (1909).   Voucher permitted to cross-examine vouchee whose interest is adverse to voucher.    - Where the vouchee was subpoenaed by the plaintiff and sworn as the plaintiff's witness, the vouchee's interest was adverse to that of defendant, and the vouchee's testimony was material and relevant to defendant's defense, there is no abuse of discretion of the trial court in permitting the voucher to cross-examine the vouchee. Clary Appliance & Furn. Ctr., Inc. v. Butler, 139 Ga. App. 233, 228 S.E.2d 211 (1976).    Notice alone, not independent venue or jurisdictional grounds, is required to conclude vouchee as to the right of the plaintiff to recover and as to the amount. Register v. Stone's Indep. Oil Distribs., 122 Ga. App. 335, 177 S.E.2d 92 (1970), rev'd on other grounds, 227 Ga. 123, 179 S.E.2d 68 (1971).    Cited in Taylor v. Allen, 131 Ga. 416, 62 S.E. 291 (1908); Byne v. Mayor of Americus, 6 Ga. App. 48, 64 S.E. 285 (1909); Ashburn v. Watson, 8 Ga. App. 566, 70 S.E. 19 (1911); Manget v. National City Bank, 168 Ga. 876, 149 S.E. 213 (1929); Maryland Cas. Co. v. Salmon, 45 Ga. App. 173, 164 S.E. 80 (1932); Acme Fast Freight, Inc. v. Southern Ry., 67 Ga. App. 885, 21 S.E.2d 493 (1942); Watkins v. Muse, 78 Ga. App. 17, 50 S.E.2d 90 (1948); Robertson v. Webster, 79 Ga. App. 30, 52 S.E.2d 511 (1949); Peavy v. General Sec. Corp., 208 Ga. 82, 65 S.E.2d 149 (1951); McMurria Motor Co. v. Bishop, 86 Ga. App. 750, 72 S.E.2d 469 (1952); Lowrance Buick Co. v. Mullinax, 91 Ga. App. 865, 87 S.E.2d 412 (1955); Central Ry. v. Southern Clays, Inc., 94 Ga. App. 377, 94 S.E.2d 625 (1956); Hutchinson v. Atkins, 95 Ga. App. 33, 96 S.E.2d 619 (1957); Register v. Stone's Indep. Oil Distribs., Inc., 227 Ga. 123, 179 S.E.2d 68 (1971); Hall v. Hatcher Sales Co., 149 Ga. App. 133, 253 S.E.2d 812 (1979); Shepard v. Byrd, 581 F. Supp. 1374 (N.D. Ga. 1984).   RESEARCH REFERENCES   ALR.    - Necessity of offering in evidence of record in the prior case in support of plea or claim that former judgment is bar or res judicata, 96 A.L.R. 944.    "Vouching in" of one who is not liable over to defendant but is liable over to one whom the defendant has vouched in, 123 A.L.R. 1153.    Extent to which vouchee is bound by judgment against voucher, 140 A.L.R. 1121.   Judgment in action against codefendants for injury or death of person, or for damage to property, as res judicata in subsequent action between codefendants as to their liability inter se, 24 A.L.R.3d 318.