It is with some reluctance that I concur in the result reached by my colleagues. My reluctance is due to my fear that the position taken may tend to limit the scope of, and defeat the purpose for the enactment of R. C. 2309.71, reflected in the presently operative Rule 14, Ohio Rules of Civil Procedure.
Concurrence is required, however, because R. C. 2309.71, and Rule 14, appear to grant discretion to trial courts when they are confronted with a motion to strike the petition of a third-party plaintiff. The pertinent language of the section, and the rule, is as follows:
"Any party may move to strike the third-party claim, or for its severance or separate trial. If the third-party defendant is an employee, agent, or servant of the third-party plaintiff, the court shall order a separate trial upon the motion of any plaintiff. A third-party defendant may *Page 118 proceed hereunder against any person [Rule 14 inserts, the words `not a party to the action' at this point] who is or may be liable to him for all or part of the claim made in the action against the third-party defendant."
The "shall" directive is to order a separate trial if the third-party defendant is an employee, agent, or servant of the third-party plaintiff. Such language seems to imply that in all other situations, disposition of the motion to strike lies within the sound discretion of the trial court.
In the present cause, the third-party petition prayed for an amount in excess of the jurisdiction of the Municipal Court. The disposition of this prayer by the majority opinion establishes another reason for concurrence. The amount prayed for brings into focus R. C. 1901.22 (E), enacted before R. C. 2309.71, or Rule 14. My colleagues are quite correct in their interpretations. To read into R. C. 1901.22 (E) a legislative intention to include a third-party plaintiff's petition would be to expand the concept of counterclaim set out in the section, to such an extent that its effect would be the creation of legislation by judicial decision.
To deny the writ of procedendo in this case for these two specific reasons is not to limit or foreclose the statutory right of the defendant third-party petitioner to have his complaint heard along with the entire matter involved in the negligence claims in an action brought by a party representing only one facet of the case.
A recent decision by the Eighth District Court of Appeals, styled Kacian v. Illes Constr. Co. (1970), 24 Ohio App.2d 43, deserves attention. It is interesting to note some basics put down by the court respecting the philosophy of the new statute and rule. Paragraph 2 of the syllabus states in part that R. C.2309.71 "* * * permits the defendant to implead a third party who is or may be liable to him for all or part of the original plaintiff's claim and no new and independent jurisdictional ground need exist between the original defendant and the third-party defendant." And, paragraph 3 says, "R. C. 2309.71 should be *Page 119 liberally construed in order to effectuate its procedural purpose." The Cleveland Municipal Court accepted the third-party petition and then sustained a motion to quash service of summons because the defendants named in the third-party petition were not residents of the city of Cleveland. An appeal was taken on this, and other grounds, and the Court of Appeals reversed and remanded the case to the trial court.
In Kacian, the trial court followed what seems to be a more acceptable procedure. It made a decision on what it felt was the law applicable to the case before it. Such a decision is the subject of appeal. In contrast, the Municipal Court of Franklin County sustained the motion to strike the third-party petition and refused to take jurisdiction to decide any question of law or fact. Such an order seems an arbitrary decision amounting to a refusal to take jurisdiction.
In this case, I agree, a writ should not issue.