ISAAC CAPAYAS, ETC., PETITIONER, VS. THE COURT OF FIRST INSTANCE OF ALBAY, ET AL., RESPONDENTS.

FERIA, J.:

This is a petition for mandamus to compel the respondent Court of First
Instance of Albay to admit the so-called amended third-party complaint filed by
petitioner against several persons named therein, on the ground that the refusal
of the respondent court to admit the same constitutes an unlawful neglect of the
performance of a duty specifically enjoined upon it by law, pursuant to Rule 12
of the Rules of Court, sections 1 and 2 of which read as follows:

“SECTION 1. Claim against one not a party to an action.—When a
defendant claims to be entitled against a person not a party to the action,
hereinafter called the third-party defendant, to contribution, indemnity,
subrogation or any other relief, in respect of the plaintiff’s claim, he may
file, with leave of court, against such person a pleading which shall state the
nature of his claim and shall bo called the third-party complaint.

“SEC. 2. Motion for leave.—Before the service of his answer a
defendant may move ex parte or, after the service of his answer, on
notice to the plaintiff, for leave as third-party plaintiff to file a complaint
against a third-party defendant.”

Petitioner’s contention is untenable.

First. Because from the said provisions it clearly appears that it is not a
court’s duty especially enjoined by law to admit a third-party complaint. Were
it a ministerial duty, it would not be necessary for the defendant to obtain
leave of court to file such a complaint; because if the court has the duty to
admit, the defendant has the correlative right to file, a third-party complaint
without necessity of such leave. Of course, when the law says that a third-party
complaint may be filed with leave of court, it refers to a complaint that
alleges facts which prima facie show that the defendant is entitled
against the third-party defendant to contribution, etc., etc. Otherwise the
court can not legally grant leave to a defendant to file it, because it would
not be a third-party complaint.

In the case of General Taxicab Assn., Inc. vs. O’Shea, U. S. Court
of Appeals, Dist. Court of Columbia, January 15, 1940, the court said: “Against
this background of statutes and decisions, the Supreme Court, in framing Rule 14
(a), chose the language ‘a defendant may move * * * for leave as a
third-party plaintiff to serve a summons and complaint upon a person not a party
to the action, * * *’ and the language ‘if the motion is granted. * *
*’ We think there can be no doubt that it was thus intended to make the
impleading of third parties in the Federal practice discretionary with the trial
court. See 1 Moore, op. cit., supra, 741: ‘Whether a party to an action
shall be allowed to implead an additional party rests in the discretion of the
court. This is in accord with the English, New York and Wisconsin practices.’ ”
(2 Fed. Rules Service, 14a.l5, Case No. 1.)

Secondly, Because the respondent court would have committed an error if it
had admitted the so-called third-party complaint filed by the petitioner against
Isidora Lladoc, Fulgencio Lladoc and Gregorio Navera, since the facts alleged
therein do not show that the petitioner is entitled to indemnity against them
“in respect to plaintiff’s claim.” The test to determine whether the claim for
indemnity in a third-party complaint, “in respect to plaintiff’s claim” is,
whether it arises out of the same transaction on which the plaintiff’s claim is
based, or the third-party’s claim, although arising out of another or different
contract or transaction, is connected wiish the plaintiff’s claim.

According to the decision in the case of Crim vs. Lumberman’s Mutual
Casualty Co.,(26 Fed. Supp., 715 [1 Fed. Rules Service, 14all, Case No. 1]), the
test to determine when a third-party defendant may be impleaded is whether he
could have been joined originally as a defendant by the plaintiff. But this
could be applied only if there could be asserted against the defendant as the
third-party defendant, jointly and severally or in the alternatives, any right
to relief arising out of the same transaction. For example in an action
against the surety on a bond, the surety may bring in as a third party
defendant, the principal who had agreed to indemnify the surety, because the
surety’s claim arises out of the same transaction (United States vs.
United States Fidelity and Guaranty Co. vs. Rolling, U. S. Dist. Ct, D.
Minn., February 1, 1940, 2 Fed. Rules Service 14a.222, Case No. 1). The
above test does not cover all cases in which impleading a third-party may be and
have been allowed, which are also covered by the test we have laid down in the
previous paragraph. Under Rule 14 of Federal Rules of Civil Procedure, which
corresponds to our Rule 12, the bringing” in of a third-party defendant is
proper if he would be liable to the plaintiff or to the defendant for all or’
part of the plaintiff’s claim against the original defendant, although the
third-party defendant’s liability arises out of another transaction. So in the
case of Carbola Chemical Co., Inc. vs. Trundle Engineering Co. (U. S.
Dist. Ct., S. D. N. Y., December 26, 1942), it was held that in an action for
breach of contract to render engineering services and to survey a plant, the
defendant was allowed to bring as a third-party defendant, the manufacturer
which sold defendant’s equipment to the plaintiff (7 Fed. Rules Service, 14a.ll,
Case No. 1). And in a negligence action by the purchaser of a confection in
which it is alleged that the confection contained a foreign object, the
defendant may bring in the person who supplied him with the constituent
containing the foreign object, as a third-party defendant (Saunders vs.
Southern Dairies, Inc., U. S. Dist. Ct., District of Columbia, November 6, 1939
[2 Fed. Rules Service, 14a.226, Case No. 3]).

Another test, provided for by section 4, Rule 12, of our Rules of Court, is
whether the third-party defendant may assert any defenses which the third-party
plaintiff has or may have to the plaintiff’s claim. If he may properly assert
such defenses, then he is a proper third-party defendant; otherwise he is not
and the claim against him can not be considered as a third-party complaint.

Petitioner’s claim for indemnity against Lladoc and others does neither arise
out of the same transaction or the alleged petitioner’s tortuous acts on which
plaintiff’s action is based, nor is it based on a different transaction but
connected with the plaintiff’s claim. Plaintiff’s claim against petitioner and
his co-defendants is, according to the allegations in the complaint, (a) to
recover from them damages for the palay which have been illegally harvested from
certain lands belonging to the plaintiff, and (b) to enjoin them from entering
said lands and disturbing and molesting the plaintiff’s right of ownership and
possession thereof. Whereas the petitioner’s claim against Isidora Llacloc and
others is to recover from the latter the value of the three parcels of land and
their fruits amounting to P3,200 plus legal interest, for having said Isidora,
as administratrix of the intestate estate of Ceferino Guanzon, sold said lands
in 1927 without authority of the court to Domingo Imperial, from whom said lands
were acquired by the plaintiff. And in the present case, it is clear that if the
so-called third-party complaint be allowed, Isidora Lladoc and others named
therein as third-party defendants could not assert any defense which the
petitioner has or may have to the plaintiff’s claim. Lastly. Because the causes
of action in this complaint against the petitioner are that “oiv the month of
April, 1944, the defendants by force, intimidation and threat * * * entered upon
the aforesaid Iancis (described in the complaint) and harvested and collected *
* * 400 cavanes of palay produced therefrom”; and that “the defendants
persist in their threat to enter upon said lands with the purpose of disturbing
and molesting the plaintiff’s right of ownership and possession thereof.” From
these allegations it appears that the petitioner is being sued in his personal
capacity, and not’as administrator of the intestate estate of Ceferino Guanzon;
because he was appointed as administrator only on July 1, 1944, according to
petitioner’s Exhibit A; and it is not within the powers and duties conferred by
law upon an administrator to do the acts complained of. Being sued in his
individual capacity, it is evident that the petitioner can not file, in his
capacity as administrator of the intestate estate of Ceferino Guanzon, a
third-party complaint against Isidora Lladoc and others. It requires no
elaborate argument to show that, under the provisions of section 1, Rule 12, a
defendant can not file a third-party complaint in a different capacity in which
he is being sued; otherwise his claim against the third-party defendant would
not be in respect to plaintiff’s claim. In other words, the would be third-party
defendants can not be made liable to the petitioner for all or part of the
plaintiff’s claim against the petitioner. Petition is therefore denied with
costs against the petitioner. So ordered.

Moran, C. J., Paras, Pablo, Perfecto, Hilado, Bengzon, Briones,
Padilla, and Tuason, JJ., concur.