Dixon v. Franklin Investment Co.

KELLY, Associate Judge: On January 5, 1966, appellee Franklin Investment Company, Inc., sued appellants for the balance due on a promissory note securing a conditional sales contract for the purchase of a 1960 Pontiac. Answers were filed May 17. In the interim appellants brought an independent action against Bankers Mutual Insurance Co. to recover the value of the car which they claimed had been stolen and totally demolished by accidental fire.1 An oral motion to consolidate the two suits was denied June 7, when this case was first called for trial. On July 18, 1966, the continued date for trial, a pending motion, filed June 17, to add Bankers Mutual Insurance Co. as a third-party defendant was denied. At the conclusion of the evidence the court found for appellee upon the note, to which appellants admittedly had no defense. The sole question on appeal is whether it was an abuse of discretion to deny the motion to add a third-party defendant. GS Rule 14(a) provides that * * * At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him. The third-party plaintiff need not obtain leave to make the service if he files the third-party complaint not later than 10 days after he serves his original answer. Oth [690] erwise he must obtain leave on motion upon notice to all parties to the action.* * * The grant or denial of a motion under this rule to add a third-party defendant is discretionary with the court, Wade v. Pastor, D.C.Mun.App., 104 A.2d 414, 416 (1954); cf. General Electric Co. v. Irvin, 274 F.2d 175 (6th Cir. 1960); General Taxicab Ass’n v. O’Shea, 71 App.D.C. 327, 109 F.2d 671 (1940); United States v. De Haven, 13 F.R.D. 435 (W.D.Mich.1953), and while an abuse of that discretion is alleged here, the claim is vague and without support in the record. First, the motion was not accompanied by a third-party complaint as is required.2 Second, it was not presented in orderly fashion .to the motions court prior to trial so that had it been granted, a further delay of trial would have resulted.3 Finally, as far as we can ascertain the proposed third-party action presents a separate and independent controversy in which a third-party defendant with no secondary liability on the note in question could only be primarily liable to third-party plaintiffs on a wholly different cause of action.4 Given these circumstances, it was well within the discretion of the trial court to deny appellants’ motion to add a third-party defendant. Affirmed. Footnotes [1] This action is still pending below. [2] Ivey v. Daus, 17 F.R.D. 319 (S.D.N.Y.1955). [3] General Electric Co. v. Irvin, 274 F.2d 175 (6th Cir. 1960). [4] See General Taxicab Ass’n v. O’Shea, 71 App.D.C. 327, 329, 109 F.2d 671, 673 (1940); United States v. De Haven, 13 F.R.D. 435 (W.D.Mich.1953); Liberty Mut. Ins. Co. v. Vallendingham, 94 F.Supp. 17 (D.D.C.1950); Wade v. Pastor, D.C.Mun.App., 104 A.2d 414 (1954).