52 N.C. 266 | N.C. | 1859
The plaintiff in this suit had sued out attachments against the defendant for seven different causes of action:
1. Upon a note dated 4 February, 1848, due one day after date, for $11.50, and payable to plaintiff as guardian of John Campbell's children.
2. Upon a note for $10, dated 7 February, 1848, due February, 1849, and payable to plaintiff as guardian of Angus Campbell's children.
3. Upon a note for $15, dated 1 February, 1847, and due on 1 February, 1848, payable to plaintiff as guardian of Angus Campbell's children. (267)
4. Upon a note for $1.50, dated 3 March, 1845, and due in February, 1846, payable to plaintiff as guardian of John Campbell's children.
5. Upon a note for 75 cents, dated 1 September, 1844, and due February, 1845, payable to plaintiff as guardian of John Campbell's children.
6. Upon a note for $5, dated 26 October, 1851, due one day after date, and payable to plaintiff in his own right.
7. Upon a note for $1.60, dated 23 August, 1852, due one day after date, and payable to the plaintiff in his own right.
These suits were 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. 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 it. *208
(268) In Thompson v. Shepherd, 9 Johns., 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 sametime, and which might have been united in one action, and when thedefense is the same 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 case to be paid by the plaintiff is without any warrant of law. The utmost power 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.
PER CURIAM. Reversed.
Cited: Caldwell v. Beatty,
(269)