77 Wis. 477 | Wis. | 1890
It may be observed at the outset that in any action to charge the defendants Edwards and Scott with the profits realized out of the lands belonging to the estate of Erancis Biron, deceased, which were conveyed by the administrator of that estate to Edwards, all the heirs of Francis Biron, and the defendants Edwards and Scott, are necessary parties thereto. Without the presence of all of them as parties, the court cannot make a full and final determination of the controversy. 'This is conceded by the learned counsel for the appellants.
The order from which these appeals .were taken brings in Francis Biron, Jr., one of such heirs who had not theretofore brought any action, as a party to the consolidated action,
In each of tbe four actions tbe complaint states a cause of action in equity in favor of tbe plaintiff and against tbe defendant therein. Tbe transactions out of which each such cause „of action arose are common to all tbe actions. Tbe evidence which will sustain a recovery in one will sustain a recovery in each of tbe others as tbe cases now stand. In every conceivable contingency tbe rights of each defendant, as against any or all of tbe plaintiffs, can be fully protected in tbe consolidated action.
It would be a violation of well-settled rules of procedure to allow these four actions to proceed pari passu, for it is manifest that but one action is necessary fully to settle the rights of tbe parties to all of them, and but one can be allowed to proceed. Tbis is not controverted by either party. Tbe question is purely one of practice. By what procedure shall the whole controversy be concentrated in one action? This might have been accomplished by bringing in all tbe heirs and both defendants in one of tbe actions, and dismissing tbe other three. If we correctly understand the position of counsel for appellants, they insist that this was tbe only proper practice. Again, instead of dismissing three of tbe actions, tbe court might have stayed proceedings therein during tbe pendency of tbe other action. We perceive no valid objection to this practice bad it been adopted.
If it be conceded that the practice adopted is not teak-nically regular, we do not understand how the appellants could possibly be injured by it, or what advantage would have accrued to them had the court, instead of consolidating the actions, stayed proceedings in or dismissed three of them. If the appellants are not injured by the alleged irregular practice (and we think they are not), it is no ground for reversal of the order of consolidation.
But we do not think the consolidation is irregular. We cannot doubt that the power inheres in a court of equity, in its discretion, to consolidate causes pending therein for the purpose of avoiding a multiplicity of suits and trials, when the consolidation can work no injury to any party. This power is essential to the proper administration of justice, and does not depend upon any statute for its existence. Counsel for appellants claim there are many limitations of the power, indeed deny that it pertains to a court of equity, but we think they take too narrow á view. There is some apparent conflict in the cases on the subject, some of them holding certain limitations on the power which others reject. ¥e shall not attempt to review or reconcile the cases, but must determine the question on what seems to us the better reason. So on these appeals we cannot hesitate to hold that, inasmuch as the results of a consolidation of the four causes must be attained in some manner, and can be attained by consolidation without injury to any'party, and inasmuch as the power to consolidate these causes inheres in the court, it was not irregular or erroneous thus to consolidate them.
It may be added that our statute on the subject contains
By the, Gowrt. — ■ Order affirmed.