138 Ark. 166 | Ark. | 1919
(after stating the facts). First. The court did not err in overruling the demurrer nor in overruling the motion to require the appellees to elect to dismiss the complaint as to all except one of the plaintiffs. Act 339 of the Acts of 1905, page 798, provides: “When causes of action of a like nature or relative to the same question are pending before any of the circuit or chancery courts of this Stlate, the court may make such orders and rulings concerning the proceedings therein as may be conformable to the usages of courts for avoiding unnecessary costs or delay in the administration of justice, and may consolidate said causes when it appears reasonable to do so.”
The several causes of action in the single complaint in separate counts, in which each plaintiff is named, grew out of precisely the same character of contract entered into on the same day for the purchase of the same kind of oats and at the same price. The only difference in the several contracts being in the amount of oatls purchased. While the difference in the quantity of oats purchased by each of the several plaintiffs and the difference in the loss of rent, time, and expense in preparing the soil and sowing the oats, necessarily caused a difference in the measure of damages for each of the several plaintiffs, nevertheless, there was such a similarity in the nature of the causes of action as to bring the several causes strictly within the provisions of the above statute.
The purpose of the statlute, as expressed therein, is “for avoiding unnecessary costs or delay in the administration of justice.” It can readily be seen that the time of thg court would be greatly conserved and the expense of litigants and taxpayers would be considerably reduced by combining these several causes of action into one for the purpose of trial. The language, “may consolidate said causes when it appears reasonable to do so,” shows that a broad discretion was intended to be conferred upon trial courts in applying the statute in order to effectuate ills advantageous purposes.
Our statute for the consolidation of causes, supra, is almost a literal copy of section 921, R. S. (U. S. Comp. St. 1901, p. 685).
In Mutual Life Ins. Co. v. Hillman, 145 U. S. 285-293, there was a single plaintiff who brought a cause of action against several defendants, in which the defense t|o the cause of action was the same. The trial court consolidated the actions for trial “because they appeared to the court to be of like nature and relative to the same questüon, because it would avoid unnecessary costs and delay, and because it was reasonable to do so and was within the discretionary power of the court, under section 921 of the Revised Statutes.”
The Supreme Court of the United States, in approving the order of consolidation for trial, said: “The learning and research of counsel have produced no instlance in this country, in which such an order, made in the exercise of the discretionary power of the court, unrestricted by statute, has been set aside on bill of exception or writ of error.”
The same ruling would be applicable, of course, where there were several plaintiffs against one defendant. See Rose Mfg. Co. v. Whitehouse Mfg. Co. et al., 193 Fed. 69.
In evoking the sound discretion of the court, each case must depend largely upon its own peculiar circumstances to determine whether the discretion of the court has been reasonably exercised.
If separate suits had been brought by each of the appellees against the appellant, it is manifest that the court under the above statute would not have abused its discretion in ordering the suits consolidated for trial. Such being the case, it was not prejudicial error tlo refuse to require the appellees to elect to proceed separately in the trial of the cases. There was not enough difference in the testimony upon which each of the appellees relied to produce inextricable confusion, and, therefore, the court was justified in its ruling. See Waters Pierce Oil Co. v. Van Elderen, 84 Ark. 556; Mahoney v. Roberts. 86 Ark. 130; Ashford v. Richardson, 88 Ark. 128; St. L., I. M. & S. Ry. Co. v. Raines, 90 Ark. 484; American Ins. Co. v. Haynie, 91 Ark. 51; Fidelity Phoenix Fire Ins. Co. v. Freidman, 117 Ark. 77; The Beatrice Creamery Co. v. Garner, 119 Ark. 564.
Second. After the demurrer and the motion to elect were overruled, the appellant stood upon his pleadings and refused to plead further, and the court proceeded, thereupon, to render judgment for the several plaintiffs, appellees, in the amounts severally claimed by them in their complaint.
One of the grounds of the motion for new trial is, “that the court erred in rendering judgment againstl the defendant in this cause.”
“Allegations of value or of amount of damage shall not be considered as true by the failure to controvert them.” Sec. 6137, Kirby’s Digest.
The court erred in rendering judgment in favor of the appellees on the allegations of their complaint as to the amount of damages, without proof as to the amount of such damages. Derrick v. Cole, 60 Ark. 394-399; Greer v. Newbill, 89 Ark. 513; Greer v. Strozier, 90 Ark. 161.
For the error indicated, the judgment is reversed and the cause is remanded for new trial.
