Buie v. Kelly, 52 N.C. 266, 7 Jones 266 (1859)

Dec. 1859 · Supreme Court of North Carolina

52 N.C. 266, 7 Jones 266

DANIEL N. BUIE v. DUNCAN KELLY.

Suits upon notes of different dates, due at different times, and payable to plaintiff in different rights, cannot be consolidated.

Where the Court directs a consolidation of suits, it can only direct the costs of the rule to be paid by the plaintiff, and should leave the general costs to abide the result.

This was a motion to consolidate, heard before Caldwell, J., at the last Pall Term of Bladen Superior Court The plaintiff in this suit, had sued out attachments against the defendant, for seven different causes of action:

1st. Upon a note dated the 4th of February, 1848, due one day after date, for $11.50, and payable to plaintiff as guardian of John Campbell’s children.

2ndly. Upon a note for $10.00, dated the 7th of February, 1848, due February, 1849, and pajmble to plaintiff as guardian of xlngus Campbell’s children.

3rdly. Upon a_note for $15.00, dated the 1st of February, 1847, and due on the 1st of February, 1848, payable to plaintiff as guardian of Angus Campbell’s children.

4thly. Upon a note for $1.50, dated 3rd of March, 1845, and due in February, 1846, payable to plaintiff as guardian of John Campbell’s children.

5thly. Upon a note for $0.75, dated the 1st of September, 1844, and due in February, 1845, and payable to plaintiff as guardian of John Campbell’s children.

6thly. Upon a note for $5.00, dated October 26,1851, due one day after date, and payable to plaintiff in his own right.

7thly. Upon a note for $1.60, dated August 23rd, 1852, due one day after date, and payable to the plaintiff in his own right.

These suits wrere commenced before a justice of the peace, from whose judgment an appeal being taken to the Superior Court, a motion was made in that Court to direct the consolidation of the first five suits as they are stated above, and also the last two. The Court allowed the motion, and directed a judgment against plaintiff for the costs of three suits. From this judgment the plaintiff appealed to this Court.

Baker, for plaintiff.

E. G. Haywood, for defendant.

Manly, J.

The rule for consolidation, which is the subject of this appeal, is erroneous There are several reasons why it is so.

The notes in suit, originated at different times, were due at different times; two of them are due to the plaintiff in his own right; two as the guardian of one family of children, and three as the guardian of another. With this diversity of claim, it is probable the matter of defense, if there be any, is different, and consequently, the replication and proof in each, will be different.

To compel a consolidation, under such circumstances, would not be in accordance with any practice in the courts of North Carolina, or elsewhere, that we are aware of.

In the case of Thompson v. Shepherd, 9 Johns. Rep. 262, it was adjudged in the Supreme Court of New York, that a consolidation rule, moved for under precisely similar circumstances, was improper. And the Court, prescribing a guide, in such cases, says, that to prevent oppression by an unnecessary accumulation of costs, a consolidation may be ordered when separate suits are brought upon notes or contracts made at the same time, and which might have been united in one action, and when the defense is the scam in all.

There is another reason arising out of the particular laws of this State, why a consolidation of small claims, subject to the jurisdiction of a justice of the peace, should not be compelled. The stay of execution is not the same, and the rights of the plaintiff might, in that way, be injuriously affected; for if a court of record may consolidate, we suppose a justice of the peace may.

The order below, for the costs of the cases to be paid by the , plaintiff, is without any warrant of law. The utmost powmr of the Court, in a case, proper for consolidation, is to direct the costs of the rule to be paid by plaintiff, and the general costs should be allowed to abide the issue, subject to such discretionary powers as are vested in the Court by statute.

This opinion must be certified to the Superior Court of Bladen, to the end that the rule appealed from, may be reversed, and that the cases may be proceeded in according to law.

Per Curiam,

Judgment reversed.