Wilder v. Greene, 172 N.C. 94 (1916)

Sept. 27, 1916 · Supreme Court of North Carolina

172 N.C. 94

J. E. WILDER v. A. W. GREENE, and A. W. GREENE v. J. E. WILDER.

(Filed 27 September, 1916.)

Actions — Consolidation—Courts—Appeal and Error.

Two causes of action, alike in tlieir facts and the issues involved, may he consolidated by the trial judge, where it can be -done without serious prejudice to the parties, the effect being to save time and unnecessary expense and prevent confusion and conflict in the verdicts; and in this case, it appearing that each member of a partnership has, in separate actions, brought suit for a dissolution thereof and asking for the appointment of a receiver, upon a disagreement among themselves, it is held that the order of the court consolidating the causes was proper. As to whether the exercise by the court of this power was discretionary and unreviewable, qumre.

Civil actioNs, from JIerteoRd, for tbe dissolution and settlement of a copartnership, beard before Winsbpn, J., on 1 August, 1916, at Winton, N. C., on motions for an injunction and receiver.

Tbe parties formed a partnership on 1 January, 1916, which was conducted until 20 July, 1916, when, disagreeing among themselves as to its management, tbe plaintiff J. E. Wilder commenced an action against A. W. Greene on tbat day for tbe purpose of having it dissolved and a receiver appointed, and on 22 July, 1916, 'the defendant in tbat action, A. W. Greene, commenced bis action against J. E. Wilder for a similar purpose. Complaints were filed in botb actions and verified, and in tbe latter action, Greene v. Wilder, tbe court appointed a temporary receiver and restrained Wilder from interfering witb tbe business or assets of tbe partnership until 1 August, 1916, when a motion for a permanent receiver would be beard. J. E. Wilder, on 20 July, 1916, bad caused to be served upon A. W. Greene a notice that on 1 August, 1916, be would apply to tbe same judge for tbe appointment of a permanent receiver for tbe same purpose. When the matter came on to be beard, tbe court consolidated tbe two actions, dissolved tbe partnership at tbe request of tbe parties, and then appointed permanent receivers of tbe partnership property, when J. E. Wilder excepted and appealed.

R. G. Bridg&r for appellant.

J. H. Matthews for appellee.

Walker, J.,

after stating tbe case: Tbe real question presented by this appeal is whether tbe court bad tbe power to consolidate the actions. It is one that is often required in order that different suits, alike in their facts and tbe issues involved, inay be brought together in one'trial, where it can be done without serious prejudice to tbe parties, as it will save time and unnecessary expense, and may prevent confusion and conflict in verdicts, if tbe actions were tried separately. Sumner v. Staton, 151 N. C., 203. The power has frequently been exercised witb the strong approval of tbe courts. Glenn v. Bank, 70 N. C., 192; Morrison v. Baker, 81 N. C., 76, and Hartman v. Spiers, 87 N. C., 28, where Smith, G. J., states the cases in which, under the general practice, consolidation may be ordered, though tbe enumeration by him does not embrace all such cases. It has been intimated that tbe exercise of the power is discretionary, Glenn v. Bank, supra; Sumner v. Staton, supra; 4 Enc. of Pl. and Pr., 688; but we do not decide bow this is. It is said in 4 Enc. of Pl. and Pr. at p. 689: “A court of equity has power to consolidate actions, witb or without tbe consent of tbe complainant. It is a power over tbe conduct of suitors, resting upon tbe clearest principles and absolutely essential to prevent scandalous abuses and to protect defendants against gross oppression.” See, also, Castle v. Castle, 69 W. Va., 400; Cooper v. Bowen, 140 Ga., 45. Whether tbe exercise of tbe power be discretionary and unreviewable, or, though it clearly exists, is subject to revision by appeal, there was no abuse of it here, and tbe result will, therefore, be tbe same in either case. Tbe judge acted wisely in consolidating the two actions, as they are substantially alike and tbe plaintiffs in them seek tbe same relief.

There is nothing in tbe other question raised, as there are no facts to be found in tbe record which support tbe contention of appellant. The signature to the complaint of appellee was evidently an inadvertence, and it was stated on the argument before us and not denied that dissolution of the law firm had taken place before any motion in the cause had been made. But apart from all this, nothing has been done that violates the rights of either party, and the order was a matter of course, as it granted the relief which both parties were demanding.

No error.