37 Ill. 156 | Ill. | 1865
delivered the opinion of the court:
The questions presented by this record, are, for the most part questions of practice. Disposing of them will dispose of the case as we understand it.
Two actions in case on promises were pending, one in the name of Almon G-. Danforth against the plaintiffs in error, and the other in the name of Asa H. Danforth and George W. Danforth against the same plaintiffs in error. The action of A. G. Danforth was upon certain promissory notes made by the plaintiffs in error to A. H. Danforth and G. W. Dan-forth by the name, style and description of A. H. Danforth & Co., and by them assigned to A. G. Danforth, the defendant in error. The other suit in the name of A. H. Danforth & Co., was brought upon an open account.
This being the position of the cases, the plaintiffs in error entered their motion to consolidate them, alleging that the subject matter involved in the two suits constitute in fact but one cause of action; that the notes, the only cause of action in the suits, were assigned to the defendant in error long after they became due; that the account sued on in the case of A. H. Danforth & Co., accrued while said notes were held and owned by A. H. Danforth & Co., and that plaintiff in error made payments from time to time on both, and by seperate trials great injustice would be done plaintiffs in error.
That as against the claims in both suits, they have credits, a set off, and payments amounting to more than any just claim of the plaintiff in both suits; that A. H. Danforth and G. "W. Danforth the plaintiffs in one case, and Almon G. Danforth, the plaintiff in the other, constituted and compose the firm of A. II. Danforth & Co. The two suits were designed to, and do embarrass the defendants in making their defence, etc. The motion was supported by affidavits not necessary to be particularly noticed.
It will be perceived, these actions were not by the same plaintiff for causes which might be joined. The rule, as stated by Tidd in his Treatise on Practice, is, if two actions are depending at one time, by the same plaintiff, against the same defendant, for causes which may be joined, and particularly if the defendant be holden to bail in both, the court will compel the plaintiff to consolidate the actions; and on account of the vexation, to pay the costs of the application. 1 Tidd’s Prac., 614.
It is not shown by the affidavits filed on this motion, that the parties are really the same in interest, in the two cases, and if not so, with what propriety could 'the motion be allowed ? If the suits were consolidated, a judgment might be rendered against the defendant in error for the indebtedness of A. H. Danforth & Co., for which he was never liable. The legal title to the notes sued on, vests, by the assignment, in A. GL Danforth, and no claim of set off as against A. H. Danforth & Go., could be allowed to prevent a recovery by the assignee. The fact that the notes were assigned after due, does not prejudice the title of the assignee, even if no consideration was paid for the assignment. But by the assignment after due, the plaintiffs in error are not deprived of any defence they may have had, while the notes were in the hands of the original payees. While the title of the assignee is valid, so is the defence of the makers protected.
We are not, however, of opinion that the refusal to consolidate can be assigned as error. We think it is discretionary with the court in all cases, and unless that discretion has been greatly abused, this court will not interfere.
In Mynot v. Bridge et al., 2 Strange, 1,178, where two declarations were delivered at the suit of the same plaintiff against the same defendants, one of them for a right of way from one part of a close to one part of a town, and the other was for another way from another part of the close to another part of the town, the court refused to consolidate them, because the plaintiff might be ready as to one and not as to the other; and in the case, two years since of Smith v. Crabb, ante, 1,149, for the same reason the court refused to consolidate several actions in ejectment.
It is distinctly decided in Worthy v. Chalk, 10 Richardson’s S. C. Rep., 141, that a motion to consolidate, is addressed to the discretion of the court, and should properly be made after declarations filed and before pleading. So in Thompson v. Shepherd, 9 Johns., 262. So in Brewster v. Stewart, 3 Wend., 441. This motion was made after pleas filed. These •cases, and others cited, were cases in which the same party was plaintiff in the several actions. We apprehend a case cannot be found, where actions brought by different plaintiffs have been consolidated, or where the fact of identity of interest, has been allowed to be tried by affidavits, especially where the facts stated and relied on in the affidavits as in this case, are put in issue by the pleas.
As to the withdrawal of plaintiff’s replications to certain of defendant’s pleas, that cannot be assigned as error, for it is also, a matter of discretion. N. Eng. Fire and Marine Ins. Co. v. Wetmore et al., 32 Ill., 251.
There is, however, an objection which has not been answered or obviated, which must reverse this judgment.
The first, second, and third counts of the declaration, were on three different notes of different amounts, and issues properly made up thereon. The fourth, counted on a note for one thousand dollars, dated Kov. 22, 1857, payable one day after date, to Asa H. Danforth & Co., with ten per cent, interest from date. The fifth count was upon a note for the same amount and similar in all respects to the note described in the fourth count. The sixth count was upon a note for two thousand dollars bearing the same date, and between the same parties and payable at the same time. The seventh count was upon a note similar in all respects to the last described note.
To these counts the plaintiffs in error pleaded four special pleas noted as the sixth, sixteenth, eighteenth, and nineteenth, to which, severally,, a general demurrer was put in by the defendant in error. This demurrer was overruled, the effect of which was to decide that those pleas presented a bar to the action of those counts. Those pleas were no further answered, consequently, they stand as a bar to a recovery on those counts. The defendants in error having abided by their demurrer, no evidence could be received under those counts. They were as though they never existed for the purpose of a recovery on them. A complete "bar was interposed which shut out all evidence in their support. Ward v. Stout et al., 32 Ill., 399.
The tenth and fourteenth errors, are well assigned and the judgment must he reversed and the cause remanded with leave to the defendants in error to withdraw their demurrer to the sixth, sixteenth, eighteenth and nineteenth pleas and reply thereto issuably.
Judgment reversed.
