CHAPTER XXV.

CONSOLIDATION OF CAUSES.

455. In general.

There is considerable confusion concerning the right of courts of equity to consolidate causes pending therein, without the consent of the parties, or certain of the parties, to such causes. In some jurisdictions it is held that the question is purely one of practice, and that courts of equity have inherent power, in their discretion, to consolidate causes pending therein for the purpose of avoiding multiplicity of suits and trials, where the consolidation can work no injury to any party, and that the power is essential to the proper administration of justice, and does not depend upon any statute for its exercise.1 By other cases it is held that, because the books of equity practice were entirely silent on the subject of consolidation of causes in courts of equity, it may be fairly inferred that no such practice existed, and consequently it is said that a court of chancery has no power to consolidate independent suits, contrary to the wishes of the parties.2 Where the courts allow consolidation of causes, it is held that the matter is always addressed to the

1 Biron v. Edwards, 77 Wis. 477, 46 N. W. 813; Burnham v. Dalling, 16 N. J. Eq. 310; Beach v. Woodyard, 5 W. Va. 231; Patterson v. Eakin, 87 Va. 49, 12 S. E. 144; Keighley v. Brown, 16 Ves. 344; Woodburn v. Woodburn, 123 Ill. 608, 14 N. E. 58, 16 N. E. 209; Portwood v. Huntress, 113 Ga. 815, 39 S. E. 299; India Rubber Co. v. C. J. Smith & Sons Co., 75 Ill. App. 223; Oldfather v. Zent, 11 Ind. App. 430, 39 N. E. 221.

2 Knight v. Ogden, 3 Tenn. Ch. 409; Claiborne v. Gross, 7 Leigh (Va.) 331; Forman v. Blake, 7 Price, 654; Ogburn v. Dunlap, 9 Lea (Tenn.) 162. See Toledo, St. L. & K. C. R. Co. v. Continental Trust Co., 95 Fed. 497. On account of the doubts which have arisen in regard to the power of courts of equity, statutes are found in many jurisdictions regulating this question. Rev. St. U. S. § 921, provides for the consolidation of causes by the courts. See, also, for practice in the federal courts, Lant v. Kinne, 43 U. S. App. 640, 75 Fed. 636; Mercantile Trust Co. v. Missouri, K. & T. Ry. Co., 41 Fed. 8; Andrews v. Spear, 4

discretion of the court. "Such consolidation is primarily but an expedient adopted for saving costs and delay. Each record is that of an independent suit, except in so far as the evidence in one is, by order of the court, treated as evidence in both. The consolidation does not change the rules of equity pleading, nor the rights of the parties, as those rights must still turn on the pleadings, proofs, and proceedings in their respective suits. The parties in one suit do not thereby become parties in the other, and a decree in one is not a decree in the other, unless so directed. It operates as a mere carrying on together of two separate suits supposed to involve identical issues, and is intended to expedite the hearing and diminish the expense."4 Where

two bills were filed by the executors of two testators, tenants in common of all their property, and who had devised it to the same persons, and where the parties interested and their rights were the same under both wills, the suits were consolidated. But where suits were by different complainants, proceeding against different funds, in the hands of different defendants, to satisfy separate and distinct liens, a consolidation was held improper." Where a creditor's bill filed after the filing of a prior bill by another creditor makes such creditor and the judgment debtor parties defendant, and attacks the good faith of the prior bill, it is proper to consolidate the two suits. Several bills filed by creditors of the same estate to subject it to their debts may be consol

Dill. 470, Fed. Cas. No. 379; Davis v. St. Louis & S. F. Ry. Co., 25 Fed. 786; Deering v. Winona Harvesting Works, 24 Fed. 90; Central Trust Co. v. Virginia, T. & C. Steel & Iron Co., 55 Fed. 769; Toledo, St. L. & K. C. R. Co. v. Continental Trust Co., 95 Fed. 497.

Beach v. Woodyard, 5 W. Va. 231; Lewis v. Daniel, 45 Ga. 124; McRae v. Boast, 3 Rand. (Va.) 481.

Toledo, St. L. & K. C. R. Co. v. Continental Trust Co., 95 Fed. 497. See Western Assur. Co. v. Way, 98 Ga. 746, 27 S. E. 167; Chicago & Great Western Railroad Land Co. v. Peck, 112 Ill. 408; Ogburn v. Dunlap, 9 Lea (Tenn.) 162; Brevard v. Summar, 2 Heisk. (Tenn.) 97; Lofland v. Coward, 12 Heisk. (Tenn.) 546.

Conover v. Conover, 1 N. J. Eq. 403.

• Wyatt v. Thompson, 10 W. Va. 645.

7 Russell v. Chicago Trust & Sav. Bank, 139 Ill. 538, 29 N. E. 37, 17 L. R. A. 345.

idated. It is held that the proper mode for bringing the subject of the consolidation of causes to the attention of the court is by motion for a rule to show cause why they should not be consolidated. It is no objection to the consolidation of causes in equity that the parties to the two bills are not identically the same, but it will be proper if the two bills, in respect to their subject-matter, are germane to each other, as when the object of both bills is to obtain a first and prior lien on the same fund.10 It is held that, when causes are consolidated, the decree should contain a description of the causes. The decree or orders should set out the fact that the causes were consolidated and heard together.11 § 456. Form of order of consolidation.

[Title of court and causes to be consolidated.]

The above-entitled causes coming on this day to be heard on the motion of A. B., solicitor for C. D., defendant in each of the aboveentitled causes, and the complainants in each of said causes being present in open court by R. S., their solicitor, and the court being fully advised in the premises, it is ordered that the above-entitled causes be and they are hereby consolidated into one cause in this court, and that all separate proceedings in each of the said above-entitled causes, save the first of said causes, be stayed, and that all future orders and proceedings in any of said causes be taken as in the first of said above-entitled causes. L. M.,

Judge.

8 Campbell's Case, 2 Bland (Md.) 209, 20 Am. Dec. 360. See, also, Monroe v. Lewald, 107 N. C. 655, 12 S. E. 287; Patterson v. Eakin, 87 Va. 49, 12 S. E. 144. For cases involving right to consolidate proceedings for foreclosure of liens, see Wabash, St. L. & Pac. Ry. Co. v. Central Trust Co. of New York, 23 Fed. 513; Schnell v. Clements, 73 Ill. 613; Brown v. Kennicott, 30 Ill. App. 89.

Wyatt v. Thompson, 10 W. Va. 645; Beach v. Woodyard, 5 W. Va. 231; McRae v. Boast, 3 Rand. (Va.) 481. The consolidation of two equity suits cannot be objected to on appeal by one who did not become a party to the litigation until after the consolidation, who made no objection on that ground in the trial court, and who is not shown to be prejudiced thereby in any of his rights. Russell v. Chicago Trust & Sav. Bank, 139 Ill. 538, 29 N. E. 37, 17 L. R. A. 345.

10 Russell v. Chicago Trust & Sav. Bank, 139 Ill. 538, 29 N. E. 37, 17 L. R. A. 345.

See, also, Thielman v. Carr, 75 Ill. 385; Chicago & Great Western Railroad Land Co. v. Peck, 112 Ill. 408; Central Trust Co. v. Virginia, T. & C. Steel & Iron Co., 55 Fed. 769.

Tharpe v. Dunlap, 4 Heisk. (Tenn.) 674.

CHAPTER XXVI.

ONE CAUSE ABIDING THE EVENT OF ANOTHER.

§ 457. In general.

Frequently, where two causes are substantially the same, and the trial or appeal of one will practically decide the merits of the other, a stipulation is entered into that one cause shall abide the determination of the other, and that final decree may be entered in accordance with such determination.1 In the case of suits actually pending, an attorney has power to agree that one suit shall abide the event of another suit involving the same question, and the client will be bound by this agreement.2 Such a stipulation does not lose its effect because a decree rendered in one cause is reversed on the ground of error in overruling a demurrer to the bill, the pleadings in that cause being thereupon amended without making any substantial change in the issues and final judgment on the merits. But it is held that, where the parties to a suit agree that the decision of their suit shall be controlled by the decision in another suit in which an appeal has been prayed, the refusal of the court to allow the appeal because of the failure to present the bill of exceptions in time does not conclude the parties, but remits them to their respective rights under their own cause.*

8 458. Form of order to abide event of another suit.

[Title of court and cause.]

This cause coming on this day to be heard, the complainant being present in open court by E. F., his solicitor, and the defendant being

1 Gillmore v. American Cent. Ins. Co., 65 Cal. 64, 2 Pac. 882; Dilworth v. Curts, 139 Ill. 508, 29 N. E. 861.

2 Stone v. Bank of Commerce, 174 U. S. 412; Ohlquest v. Farwell, 71 lowa, 231, 32 N. W. 277; North Missouri R. Co. v. Stephens, 36 Mo. 150, 88 Am. Dec. 138; Eidam v. Finnegan, 48 Mina. 53, 50 N. W. 933, 16 L. R. A. 507. See, also, Scarritt Furniture Co. v. Moser, 48 Mo. App. 543.

& Gilmore v. American Cent. Ins. Co., 67 Cal. 366, 7 Pac. 783.

4 Moore v. Martin (Miss.) 18 So. 119. It has been held that, where there was a stipulation that one cause should abide the result of the

likewise present by G. H., his solicitor, and both parties consenting and agreeing in open court that the issues in this cause are identical with those of another suit pending in this court, entitled "L. M. vs. N. M.," the general number thereof being 4,799, and both said parties agreeing and consenting to the entry of this order, and the court being fully advised in the premises,

It is ordered that all proceedings in this cause shall be, and they are hereby, stayed until final decision and decree in said cause wherein the said L. M. is complainant and the said N. M. is defendant, and, in case of an appeal in said last-named cause, then said proceedings are and shall be stayed until the final determination of said appeal, and upon such final determination, decree, and decision in said cause, wherein the said L. M. is complainant and the said N. M. is defendant, either party to the above-entitled cause, without notice, shall and may cause to be entered a decree in this cause corresponding to and like the said final decree in the said cause wherein the said L. M. is complainant and the said N. M. is defendant, and of the same date as such decree in said other cause.

L. N.,
Judge.5

decision of the appeal in another cause, and the appeal was not decided on the merits, the party could not be relieved from his stipulation on the ground that the action of the appellate court was not in contemplation of the parties when the stipulation was signed. McNeill v. Town of Andes, 40 Fed. 45. But, to the contrary, see Magnolia Metal Co. v. Pound, 60 App. Div. 318, 70 N. Y. Supp. 230. It has been held that, where a stipulation is filed in a cause that such cause may be tried, and the event of that suit shall control the judgment in other pending suits of the same character, such stipulation is not merely an independent executory agreement, but operates presently to affect the status of the cause itself, and invests the complainant with rights in respect to its conduct which he otherwise would not have had, and of which neither the opposite party nor the court can lawfully divest him, and that, in such case, the defendant, having recognized the effect of the stipulation, had no right to dismiss his appeal in the cause stipulated to be tried. McKinley v. Wilmington Star Mining Co., 7 Ill. App. 386. It is held in Illinois that a stipulation that a cause shall abide the result of an appeal in another case is a part of the record, and need not be preserved by a certificate of evidence. Dilworth v. Curts, 139 Ill. 508, 29 N. E. 861.

5 The foregoing form is taken from Gillmore v. American Cent. Ins. Co., 65 Cal. 64, 2 Pac. 882. For other cases where stipulations concerning abiding the event have been made and acted upon, and appear in the reported cases, see Stone v. Bank of Commerce, 174 U. S. 412; Niagara Fire Ins. Co. v. Scammon, 35 Ill. App. 582; McKinley v. Wilmington Star Mining Co., 7 Ill. App. 386; Dilworth v. Curts, 139 Ill. 508, 29 N. E. 861; Moffitt v. Jordan, 127 Cal. 628, 60 Pac. 175; Herman v. Michel, 36 App. Div. 127, 55 N. Y. Supp. 359; Scarritt Furni ture Co. v. Moser, 48 Mo. App. 543.