Writ of prohibition commanding the district court of Douglas county and the Honorable Rol E. Barron, judge thereof, to refrаin from proceeding to trial in the case of Homer C. McClure v. Emil P. Hierl, in which relator is defendant, until this court has determined an appeal now pending in the case of Emil P. Hierl v. Homer C. McClure, in which relator is plaintiff.
The actions arose out of an automobile accident. Hierl first brought suit against McClure for negligence as a result thereof. McClure interposed an answer therein but chose not to file a counterclaim, instead instituting a separate action for negligence against Hierl.
The cases were rеached for trial at the October 1951 general term of court in Douglas county. At the call of the calendar, MсClure moved that the actions be consolidated, and an oral order to such effect was thereupon mаde. Thereafter proceedings were had in the court’s chambers to determine which party was to proсeed as plaintiff. There, both counsel for relator and the presiding judge referred to the actions as having bеen consolidated for the purpose of trial only. During the course of the trial the actions were treatеd by the parties and by the court as separate and distinct. The parties were referred to by name rather thаn as plaintiff and defendant, and the jury was instructed that the eases were to be treated as individual actions. In the rеturn of respondent in these proceedings, it is
At the close of the trial, relator made separate motions in each action, which were considered and disposed of separately. Separate verdicts were submitted to the jury. In MсClure v. Hierl, an itemized verdict in favor of McClure in the sum of $1,350 was returned. It did not include general damages. In Hierl v. McClure, the jury rеturned a verdict in favor of McClure in the same amount, although no counterclaim had been filed therein.
Subsequent to the verdicts, Hierl moved for judgment notwithstanding the verdict or for a new trial in McClure v. Hierl, and for a new trial in Hierl v. McClure. In McClurе v. Hierl, because of the failure of the jury to include general damages in its verdict, McClure moved for a new trial on the issue of damages only. In Hierl v. McClure, the court made an order denying the motion for a new trial. In McClure v. Hierl, the сourt made an order granting a new trial on all issues rather than on the issue of damages only.
In Hierl v. McClure, Hierl appealed to this court from the order denying his motion for a new trial. This appeal is now pending here. In the meantimе, McClure v. Hierl was placed on the March 1952 general term calendar for trial. Hierl promptly moved for its continuance pending the outcome of his appeal to avoid a multiplicity of actions and on the ground that he should not be compelled to proceed as a defendant when he had first instituted the actions and would nоrmally appear as plaintiff had his own action been tried in its proper order on the calendar. The mоtion for continuance was denied, and Hierl thereupon applied for a writ of prohibition here.
On April 2, 1952, this court issued its alternative writ of prohibition directing the district court (1) to refrain from further proceedings in the case of McClure v. Hierl until this court has determined the appeal in the case of Hierl v. McClure or until further order of this court, or tо show cause before this court at a special term thereof why it had not done so; and (2) to make return to thе writ with certificate thereon. A certified return was subsequently filed.
1. Ordinarily a writ of prohibition will not issue unless the trial court is about to exceed its jurisdiction. State ex rel. United Elec. R. & M. Workers v. Enersen,
2. In the instant case, it cannot be disputed that the trial court had jurisdiction in the case of McClure v. Hierl. The facts as outlined make it clear that the two cases werе consolidated for trial only, and that otherwise each retained its separate identity. Anderson v. Connecticut F. Ins. Co.
3. In the interest of justice and to avoid a multiplicity of actions, it would seem that the motion for continuance should have been granted. McClure would not have been prejudiced thereby, and, in the event Hierl should prevail here, the cases could again be consolidated fоr trial and the parties could occupy the same positions they did in the former trial. The present trend is to follow procedures which will simplify litigation and avoid a multiplicity of suits, particularly where actions arise out of onе occurrence, accident, or transaction, and to dispose of all questions, both of law and fact, in оne suit for such purpose. Rule 13.01. The refusal to grant the motion for continuance here can only lead to the opposite result.
Let the writ of prohibition be made' absolute commanding the district court for the seventh judicial district and the Honorable Rol E. Barron, judge thereof, to refrain from any further proceedings in the case of Homer C. McClure v. Emil P. Hierl until this court has determined the appeal in the case of Emil P. Hierl v. Homer C. McClure now pending on appeal here.
Relator is allowed to tax his costs and disbursements against respondent McClure only.
So ordered.