5 W. Va. 231 | W. Va. | 1872
These causes were proceedings in equity, in the circuit court of Kanawha county, to enforce judgment liens. The defendant lias appealed to this court,'and submitted the causes together- No error is assigned in the case of Woodyard vs. Beach and others, and as none appear from the record snf-
As to the cause of White & Bibby vs. Andrew H. Beach, but one question was raised by the argument, and the only point assigned as error by the defendant, viz : “ That the court erred' in refusing to consolidate the two causes, at the costs of White- and Bibby, upon the motion of Beach,” I cannot see any reason to lead me to the opinion that the rule for the consolidation of suits in equity should be different from that established for actions at law, unless governed by statute. In the cases of McRae vs. Boast, 3 Randolph, 481, the court held that, “the consolidation of actions is not a matter of right, nor is it the proper subject of any plea, either in bar or in abatement. It depends on the circumstances of the case, and is-addressed to the discretion of the court; and the only proper mode of bringing it to the views of the court is by. a motion for a rule to shew cause why the actions should not be consolidated.” I am of opinion that -where the parties are the same, and separate suits have been brought in equity upon matters which might have been united in one suit, and the defense is the same in all, a consolidation rule ought to be granted; for, otherwise, the defendant would be oppressed, if not ruined, by an unnecessary accumulation of costs. But where the suits are by different plaintiffs, proceeding against different funds of the defendant to satisfy separate and dis-tinot liens, as in the cases before us; and where the judgment lien, as in the case of the plaintiffs, White & Bibby, was created long subsequent to the institution of the creditor's suit by Woodyard, and subsequent to the master commissioner's report ascertaining the liens on the property proceeded against in Woodyard’s suit, and their priorities, and a decree confirming said report, adjudicating the merits of the cause, and enforcing the liens against the property elected by the creditors in the first suit, having been entered before the institution of the suit by the subsequent judgment creditors, it seems to me, the court may, in its discretion, refuse to consolidate.
The proceedings are to enforce judgment liens against the property of a person living; the first creditors have selected a particular tract or lot of land ascertained to be sufficient to
The decree should be affirmed, with costs and damages..
Degree akkirmed.