Note on Consolidation of Actions.

'In a general sense it means to unite into one mass or body, as to consolidate the forces of an army, or various funds. In parliamentary usage, to consolidate two bills is to unite them into one. In law, to consolidate two bills is to combine them into one.' Such is Mr. Webster's definition of the word." Ind. Dist. of Fairview v. Durland, 45 Iowa, 53.

Where two actions have been consolidated they constitute thereafter but one action. Castro v. Whitlock, 15 Tex. 437.

Any or all of the actions may be consolidated by the court (§ 817); and it seems that the extent of the consolidation must depend upon circumstances. Syers v. Pickersgill, 27 L. J. Exch. 5.

It seems, that where the effect of the consolidation would be to make the aggregate demand exceed the jurisdiction of the court, the motion should not be granted. Manufacturers' Bank v. Goolsby, 35 Ga. 82; Parrott v. Green, 1 McCord, 534; Planter's &c. Bank v. Cowing, 2 Nott & M'C. 438; Martin v. Chauvin, 7 Mo. 277; but see Phillips v. Delane, 2 Brev. 439; Scott v. Brown, 1 Nott & M'C. 417, note.

PRACTICE NOT CHANGED.-The Code of Procedure did not change the practice in regard to the consolidation of actions (Morris v. Knox, 6 Abb. 328, note), nor has it been changed by the Code of Civil Procedure (§ 817), Bech v. Ruggles, 6 Abb., N. C., 69; Lockwood v. Fox, 8 Daly, 127; Campbell, &c., Co. v. Lyddy, 1 Cwv. Pro. R. (1 McCarty), 364.

DISCRETIONARY.-The order for consolidation is discretionary, Code of Civ. Pro. § 817; Wilkinson v. Johnson, 4 Hill, 47; Brewster v. Stewart, 3 Wend. 441; Crane v. Kohler, 6 Abb. 328, note; Eleventh Ward Sayings Bank v. Hay, 8 Daly, 328; S. C., 55 How. 438. When saying that the order is discretionary, it should be understood that it can be granted only when the application is brought within the provisions of the Code, Mayor v. Mayor, supra.

Consolidation is not a matter of strict right, nor is it the proper subject of any plea, either in bar or in abatement. M'Rae v. Boast, 3 Rand. (Va.) 481.

BY WHOM MOTION MAY BE MADE.- A motion for the consolidation of actions, under sections 817, 818 of the Code, as the substitutes of 2 R. S. 383, sections 37, 38, may be made by the plaintiff as well as by the defendant. Briggs v. Gaunt, 4 Duer, 664; S. C., less fully, 2 Abb. 77.

It seems to be conceded that, under the English practice, both at common law and under the judicature acts, the motion for consolidation must be made by the defendant. Amos v. Chadwick, 4 L. R. Chanc. Div. 869; Wilson's Judicature Acts (3d ed.), 395; Chitty's Forms of Prac. Proc. 11th ed.), 223; Lush's Pr. 564. The reason for thus limiting the right to move, at least in cases where both causes of action had accrued at such a time that they might, without delay to the plaintiff, have been united in one declaration, appears to be, that the plaintiff, having had it within his power, in the first instance, to unite the causes of action, and having

Note on Consolidation of Actions.

elected to bring separate actions, cannot afterward make another election and consolidate the action, and so be heard to complain of his own act. Groff v. Musser, 2 Ser. & R. 262. In Briggs v. Gaunt, supra, the second cause of action had not accrued when the first action was brought, and, therefore, the plaintiff, the moving party, could not, in the first instance, have united it with that of the first action, and the consolidation was proper. But an examination of Briggs v. Gaunt will show that, although the construction of the statute (2 R. S. 383, § 36), was directly involved, and it was held that a motion to consolidate might be made as well by the plaintiff as by the defendant, the case does not go to the extent of holding, that under all circumstances it would be proper to grant the notion when made by the plaintiff. An objection such as suggested above, while not being an obstacle under our practice to the plaintiff's moving, might, perhaps, be deemed sufficient to justify a denial of the motion, when opposed by the defendant. But it would seem that the provisions of the Code (§§ 817, 818), were broad enough, in a proper case, to permit the court, of its own motion, to order a consolidation.

Under the terms of section 819, it seems that in actions brought against joint and several debtors, in the same court, for the same cause of action, only the plaintiff can have the consolidation. See 2 Wait's Pr. 258; Briggs v. Gaunt, 4 Duer, 664, 666.

WHEN MOTION SHOULD BE MADE.-A motion for consolidation must be made before the actions are brought on for trial. Eleventh Ward Savings Bank v. Hay, 8 Daly, 328, S. C., 55 How. 738, affirmed, 73 N. Y. 609, and see Jackson ex dem. Pionier v. Schauber, 4 Cow. 78.

By plaintiff, should not be made until after defendants have answered. Le Roy v. Bedell, 1 Code R., N. S. 201.

When defendants have answered, and the plaintiff subsequently serves an amended complaint, the defendants should not move for consolidation until the time to answer the amended complaint has expired, unless they show the nature of the defense to the amended complaint. Le Roy v. Bedell, supra.

Defendant may plead before making the motion. Jenkins v. Bloodgood, 22 Wend. 645.

Where the plaintiff sues out a writ against one defendant, and afterwards discovers that there is another, a partner of the first defendant, against whom he takes out a writ to answer simul cum, the plaintiff should move to consolidate the actions, for if he do not, he cannot, after a plea in abatement to a separate declaration, apply to amend his declaration by adding the other defendant. Caines' Pr. 134, citing MS. case of Shute v. James (decided in 1801); and see Smith v. Woodward, 1 Cranch C. C. 226.

WHAT MUST APPEAR.- The moving papers must show that the same question or questions are to be litigated in each action, and where the motion is made by the defendant, the nature of the defense must be dis

Note on Consolidation of Actions.

closed, although a defense on the merits is sworn to in each action. Wilkinson v. Johnson, 4 Hill, 46.

It is not enough for the defendant to show that the causes of action in the different suits are such as might be joined; it must appear in addition, that no defense is intended in any of the actions, or that the questions which will arise are substantially the same. Wilkinson v. Johnson,

supra.

It is not sufficient for the moving affidavits to merely state that the defenses in each action will be substantially the same. It should appear, that the questions to be tried will be substantially the same in all of the actions.

Dunn v. Mason, 7 Hill, 154.

That the defense in each action is substantially the same, is not enough. The nature of the defense should be disclosed, that the court may determine whether the questions are such as can properly be disposed of at one trial. The questions to be tried must be substantially the same. Crane v. Kohler, 6 Abb. 328, note; Gerding v. Anderson, 64 Ga. 304.

The inquiry is, whether the questions to be tried are substantially the same, and the defenses identical. Morris v. Knox, 6 Abb. 328, note.

It should be shown, that the causes of action are such as might be joined in the same complaint, and that the questions which will arise in both actions are substantially the same; and, either that no defense is intended, or that the defense will be substantially the same in both actions. If these matters are not controverted, and it does not appear that any great delay will ensue from the consolidation, or that it will be prejudicial to the rights of the other party, the motion will be granted. Dunning v. Bank of Auburn, 19 Wend. 23.

It seems that it is not a case for the consolidation of two actions, where there is a defense in only one. Wilkinson v. Johnson, 4 Hill, 46. The rule that on moving for a consolidation it must affirmatively appear, that no defense is intended in any of the actions, or that the questions which will arise in them are substantially the same, applies to section 817 of the Code. Campbell Printing, etc., Co. v. Lyddy, 1 Civ. Pro. R. ( McCarty), 364.

Where the second cause of action had not accrued when the first action was brought, and the defendant moved for the consolidation of the actions on the ground that the questions which would arise in both were the same, but it did not appear that there was to be any defense, and the effect of the consolidation would have been to delay the first action, although there was no defense in that action, the motion was denied. But if the defendant had shown that he intended to suffer judgment to be taken by default in both actions, or if he had offered to take such steps as would have avoided the delay, which the consolidation would otherwise occasion, the motion might have been granted. Pierce v. Lyon, 3 Hill, 450; and see Morris v. Knox, 6 Abb. 328, note. But where

Note on Consolidation of Actions.

the causes of action accrued at different times, and the motion to consolidate is made by the plaintiff, and would be the occasion of delay to him only, the defendant has no right to complain of such delay, to which the plaintiff is willing to submit. Briggs v. Gaunt, 4 Duer, 664, 667.

Where the moving affidavit for a consolidation was made by the defendant's attorney, and it set forth that he was informed by the president of the defendant that there was a good defense, and that the questions were the same in each action, but no excuse was given why the affidavit was not made by such president, INGRAHAM, J., denied the motion. Hone v. Farmers' Bank of Ohio, MS. case cited, Voorhies' Code (10th ed.), 259 note c.

The parties must be the same in each action. Code of Civ. Pro. § 817; Cooper v. Weed, 2 How. 40; Mayor v. Mayor, supra.

The causes of action must be such as might be joined in one complaint. Section 817; Wilkinson v. Johnson, 4 Hill, 46; Dunning v. Bank of Auburn, 19 Wend. 23; Mayor v. Mayor, supra; Blesch v. Chicago, &c., R. R. Co., 44 Wis. 593. As to what causes of action may be joined in one complaint, see section 484.

MERITS. It is not necessary that a defense on the merits should be shown to entitle a defendant to an order for consolidation, and an affidavit of merits is not necessary. Brewster v. Stewart, 3 Wend. 441, 442.

But to save a default in pleading, on a motion for consolidation, such an affidavit is necessary. Jenkins v. Bloodgood, 22 Wend. 645; see

Extension of Time to Plead."

ACTIONS BROUGHT AT DIFFERENT TIMES. - Consolidation may be granted, not only when the actions are brought at the same time, but when they were brought at different times; and it is not a sufficient objection to granting the motion that the second cause of action had not accrued at the time when the first action was brought. Dunning v. Bank of Auburn, 19 Wend. 23; Oldershaw v. Tregwell, 3 Car. & Payne, 58; and see Brewster v. Stewart, 3 Wend. 441; Briggs v. Gaunt, 664, 667.

COSTS.-In Ferris v. Betts (2 How. 78), it was said that no costs would be allowed on granting a motion for consolidation. But as the weight of decisions is to the contrary, and as costs are allowed so frequently in practice, this case cannot be regarded as an authority.

When all the demands might have been embraced in one action, and consolidation is ordered on motion of the defendant, costs will be awarded to him, unless a satisfactory reason is shown by the plaintiff for bringing more than one action. Bank of U. S. v. Strong, 9 Wend. 451; and see Anon, 1 Chitty R. 709, note; Cecil v. Brigges, 2 Term. R. 639.

The plaintiff will be ordered to pay the costs of the motion, when both of the actions were commenced at the same time, or under circumstances which evince a disposition to make the actions burdensome to the defendant. In other cases, if the plaintiff, without reasonable grounds for

Note on Consolidation of Actions.

objection, refuse to consent to a consolidation, after a request, he will be required to pay the costs of the motion. Dunning v. Bank of Auburn, 19 Wend. 23.

Unless under circumstances justifying it, special provision is made in the order for consolidation, saving the costs already incurred in the actions discontinued by the consolidation, such costs are lost so as not to be taxable in the consolidated action. Blake v. Michigan, etc., R. R. Co., 17 How. 228; and see Simpson v. Caulkins, 1 Abb. Adm. 539, 544; but see, under the old practice, Earl v. Lefferts, 1 Johns. Cas. 395; S. C., Col. & C. Cas. 102.

For an instance of the imposition of costs of the action, already accrued, and motion costs, upon granting an order for consolidation, on motion of plaintiff, see Briggs v. Gaunt, 4 Duer, 664; S. C., 2 Abb. 77. ADJOURNMENTS.- Where the plaintiff refuses in a proper case to enter into a consolidation rule, he will be entitled to no indulgence; but the defendants may have imparlances until one of the actions shall have been tried as a test. Church v. Clason, Col. & Cai. Cas. 62; S. C., 1 Johns. Cas. 29; Cuines' Pr. 133; 1 Tidd's Pr. (9th ed.), 615; and see Amos v. Chadwick, 4 L. R. Ch. Div. 869. ESTOPPEL. -A party who has opposed a motion to vacate an order for consolidation, cannot afterward be heard to complain that the order was not vacated. Lockhart v. Harrell, 6 La. An. 530.

EXTENSION OF TIME TO PLEAD.-An order staying proceedings pending a motion by defendant to consolidate, does not extend the time to answer, although the motion may be granted. Jenkins v. Bloodgood, 22 Wend. 645.

An application for an extension of time should be brought within sections 781, 782, and Rule 24 of the General Rules of Practice.

EVIDENCE. Where a commission, in which the defendant joined, has been issued in the consolidated action, the court will allow the evidence taken thereunder to be read on the trial of the principal action. Waterbury v. Delafield, 1 Cai. 513; but see Lofland v. Coward, 12 Heis. (Tenn.), 546.

A rule to examine witnesses de bene esse will be denied to a plaintiff who refuses, in a proper case, to enter into a consolidation rule. Church v. Clason, Col. & Cai. Cas. 62; see "Adjournments."

JUDGMENT. When the actions have been consolidated, but one judg ment should be entered, and the pleadings in all the actions should be attached together for the purpose of making the judgment-roll. Davis v. Smith, MS. case, cited Holmes & Disb. Pr. 275; and see Jackson er dem. Swartwout . Stiles, 5 Cow. 282; Lee v. Board of Township of Kearny, 42 N. J. L. 543, 546.

It seems that where no defense is intended in either of two actions, and consolidation is asked for the purpose of avoiding the expense of entering