Opinion
June Term, 1826.
Where a plaintiff sued out twenty-one warrants on twenty-one notes, amounting in all to $104 in cases where the causes of action were the same, and the defense was the same in all, the court compelled plaintiff to consolidate.
APPEAL from WAKE. Person warranted the State Bank in twenty-one different cases, on their notes, the whole amount of notes being somewhat more than $100, and having obtained judgments, the bank appealed to the county court of Wake. In the county court defendant moved to consolidate the several suits, and the court ordered them to be consolidated, on condition that the defendant would not plead in abatement the want of jurisdiction in the justice who tried the warrants, and that they would pay the fees of the clerk and constable. Defendant acceded to the terms, and pleaded the general issue, payment and set-off, and the cause was put to a jury, who found a verdict for the plaintiff and assessed his damages to $127.34 and costs, according to which finding the court gave judgment, from which defendant appealed to the Superior Court. The plaintiff also appealed from the judgment of the court as to the consolidation. Afterwards, in the Superior Court, Paxton, J., presiding, it was ordered that the appeal of the plaintiff from the order of consolidation should be dismissed with costs, and the cause stand as one suit, brought upon appeal by the defendant; whereupon Person appealed to this Court.
In this Court, by consent of parties, the records of all the cases in the Superior Court (twenty-one in number) were considered as being before the court, from which it appeared that in each case the justice gave judgment for 50 cents more than the note amounted to, besides interest; and, further, that ten of the notes were protested and eleven were not.
Haywood for the Bank.
The power which the courts exercise in consolidating actions has for its object the attainment of justice with the least expense and vexation to the parties; but as to the exercise of this power the decisions have not been uniform.
In Smith v. Crabb, 2 Str., 1149, and Mynot v. Bridger, ibid., 1178, the Court refused to consolidate because, being distinct actions, the plaintiff might be ready for trial in one action, but unprepared in the other. But in Cecil v. Briggs, 2 Term, 639, the Court held that not to be a good reason against consolidating two actions, both being brought in assumpsit, the causes of action arising in the same county, the writs having been sued out on the same day, and the defendant having been held to bail in both actions; because, they said, if the defendant was not ready in both actions, but only ready in one, he might continue both. The reasoning on which this case stands is not satisfactory to the Court, in Thompson v. Sheppard, 9 Johnson, 262. There three actions were brought by the indorser against the maker on three promissory notes. The notes (298) were dated on different days, for different sums, and payable at different times to the same person, who indorsed them to the plaintiff. The writs were issued at the same time and served at the same time. On motion for that purpose, the court refused to consolidate the actions, because they said different defenses might be set up.
In the present case the different suits commenced by way of warrant. The defendants appealed to this Court. If they appealed without just cause, they ought not to be favored. The justice gave judgment in each case for 50 cents more (besides interest) than the notes amounted to, amounting in all to $10.50. Ten of the notes were protested, eleven were not protested. In this situation of things the defendants might have supposed themselves aggrieved. I, therefore, lay that circumstance, the appeal, out of the way. Where suits were commenced by way of warrant, two warrants would have answered the plaintiff's purpose to recover $104 as well as twenty-one, and, indeed, would have been less trouble to him as well as expense to the defendants. When the warrants were consolidated in the county court, I can see no injury the plaintiff was likely to sustain by it; it was altogether improbable there should be different defenses; the causes of action were the same. I cannot, therefore, find fault with the discretion which the court have exercised. Much expense or cost is saved by it. Although the authorities before recited differ in some respects, they all agree in this, that the court possesses the power of consolidating suits when a proper occasion offers. I think the judgment of the Superior Court should be affirmed.
The CHIEF JUSTICE and Judge HENDERSON concurring.
PER CURIAM. Affirmed.
Cited: Caldwell v. Beatty, 69 N.C. 371.
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