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Rule 38. Third Party Practice (Mar1941)

TEXT

(a) When defendant may bring in third party. A defendant, on notice to the plaintiff, may ask leave of the court to file a cross-action against a person not a party to the action who is or may be liable to him or to the plaintiff for all or part of the plaintiff's claim against the defendant. If the leave is granted, and service is completed upon the cross-action, the person so served, hereinafter called the third party defendant, shall make his defenses under the rules applicable to the defendant, and his counter-claims and cross-claims against the plaintiff, the defendant impleading him (hereinafter called the third-party plaintiff) or any other party. The third-party defendant may assert any defenses which the third-party plaintiff has to the plaintiff's claim. The third-party defendant is bound by the adjudication of the third-party plaintiff's liability to the plaintiff, as well as of his own to the plaintiff or to the third-party plaintiff. The plaintiff may amend his pleadings to assert against the third-party defendant any claim which the plaintiff might have asserted against the third-party defendant had he been joined originally as a defendant. A third-party defendant may proceed under this rule against any person not a party to the action who is or who may be liable to him or to the third party plaintiff for all or part of the claim made in the action against the third-party defendant.

(b) When plaintiff may bring in third party. When a counterclaim is asserted against a plaintiff, he may cause a third party to be brought in under circumstances which under this rule would entitle a defend­ant to do so.

(c) This rule shall not be applied, in tort cases, so as to permit the joinder of a liability or indemnity insurance company, unless such company is by statute or contract liable to the person injured or damaged.

(d) This rule shall not be applied so as to violate any venue statute, as venue would exist absent this rule.

Amended by order of March 31, 1941, eff. Sept. 1, 1941 : Subdivisions (c) and (d) added.