PAN AMERICAN SURETY COMPANY, APPELLANT,
v.
JEFFERSON CONSTRUCTION COMPANY AND EMANUEL ELECTRIC COMPANY, INC., APPELLEES
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The court held that the trial court lacked jurisdiction to entertain a third-party proceeding because Florida's Rules of Civil Procedure do not provide for such practice, unlike the Federal Rules.
A defendant invoked third-party procedure and filed a cross-action against a surety company and its principal, who were not parties to the original su…
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CARROLL, CHAS., Chief Judge.
The appellant seeks reversal of a money judgment rendered against it as surety on a sub-contractor’s performance bond, in a law action in which one of the original defendants invoked third-party procedure and filed a cross-action against appellant and its principal, neither of whom were parties to the suit.
The so-called cross-action against the appellant was not in connection with a counterclaim against the original plaintiff, nor was it an incident to a cross-claim against any co-party in the original action.
Appellant’s timely motion to dismiss was denied by the lower court, which action was assigned as error. The motion to dismiss should have been granted.
Rule 1.13(8), 1954 Florida Rules of Civil Procedure, 30 F.S.A., makes provision for joining additional parties in connection with a counterclaim (against a plaintiff) or on a cross-claim (against a co-party in the case). The Florida rule is similar to Rule 13(h) of the Federal Rules of Civil Procedure, 28 U.S.C.A. Federal Rule 14 permits bringing in additional parties without need for a counterclaim or cross-claim against existing parties, which it designates as “Third-party Practice”. That rule would have permitted what was done here. But the Florida Rules of Civil Procedure con tain no provision equivalent to Federal Rule 14 for such third-party practice.
Therefore, the court was without jurisdiction, in the case then pending before it, to entertain the third-party proceeding which resulted in the judgment appealed from. Cf. Hendricks v. Williams, 151 Fla. 538, 9 So. 2d 923, 925. The judgment appealed from is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
Reversed.
HORTON and PEARSON, JJ., concur.
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Shotkin v. Deehl, 148 So. 2d 538 (Fla. 3d DCA 1963)…support of a claim not germane to nor growing out of the plaintiff’s action. This constitutes third party practice and is not permitted by the Florida Rules of Civil Procedure. See Pan American Surety Co. v. Jefferson Construction Co., Fla.App.1958, 99 So. 2d 726. Cf. Rule 14, Federal Rules of Civil Procedure. The motion for stay is accordingly denied and the appeal is dismissed.…
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City OF Boca Raton v. K. L. "Jack" Sharp, 107 So. 2d 271 (Fla. 2d DCA 1958)…pursuant to Rule 1.35(b) [30 F.S.A.]”. Petition for rehearing was denied after hearing, and this appeal was instituted. In the case of Pan American Surety Company v. Jefferson Construction Compa [*272] ny (District Court of Appeal, Third District), 99 So. 2d 726, Judge Carroll wrote: “Rule 1.13(8), 1954 Florida Rules of Civil Procedure, 30 F.S.A., makes provision for joining additional parties in connection with a counterclaim (against a plaintiff) or on a cross-claim (against a co-party in the case). The…
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Paulson v. Faas, 171 So. 2d 9 (Fla. 3d DCA 1965)…ary or proper parties for a complete determination of the initial cause of action. Florida Rules of Civil Procedure do not provide for third party practice as does Federal Rule 14. In Pan American Surety v. Jefferson Construction Co., Fla.App.1958, 99 So. 2d 726 this court, speaking through Judge Charles A. Carroll, said:2 “ * * * Federal Rule 14 permits bringing in additional parties without need for a counterclaim or cross-claim against existing parties, which it designates as ‘Third-party Practice.’ Tha…
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- George W. Hendricks and his wife v. Williams, 151 Fla. 538 (Fla. 1942)