233 So. 2d 482 | Ala. | 1970
This is an original mandamus proceeding in this court to require the respondent judge to set aside an order which consolidated *476 petitioners' case with other similar pending cases for trial.
On October 6, 1969, the Honorable David R. Archer, Presiding Judge of the Twenty Third Judicial Circuit, ordered that petitioners' case, No. 14684, be consolidated for trial with seventeen other pending cases. All of the cases deal with assessments against eighteen lots by the City of Huntsville for the laying of a sanitary sewer contiguous to the lots.
The judge's order states that there were eight hundred twenty-six separate appeals taken from the assessments by the City and he consolidated them for trial in groups averaging approximately sixteen cases per group.
Petitioners' assessment suit is No. 14684 and his attorney also represents all the owners of the other seventeen lots, no two of which are owned by the same person. The pleadings have not been settled and the question of the uniformity of the issues is outstanding.
The trial judge appeared and argued pro se on March 17, 1970. He explained that he was present to argue because neither the City nor the taxpayers would agree to a consolidation of the cases. It was his contention that there is adequate authority to authorize the consolidation of the cases either on the basis of the common law, statutory law, or the inherent power of the court. We cannot agree.
The statute authorizing consolidation of cases in most of the counties in the state is Tit. 7, § 259, Code 1940, which reads:
"Whenever two or more actions are pending at the same time, between the same parties, in the same court, and which might have been joined, the court may order them to be consolidated."
It will be noted that the cases here are not "between the same parties."
Our statute, Tit. 7, § 259, has been held to "be merely declaratory of the common law." Ex parte Ashton,
In Decatur Land Co. v. City of New Decatur,
In Southern Ry. Co. v. Clarke,
In 1935, the legislature passed Tit. 7, § 221, which applies to consolidation of cases in counties having a population of 300,000 or more. The constitutionality of this statute was upheld in Ex parte Ashton,
But in Ex parte Miller,
Many of the same reasons stated in Ex parte Miller, supra, are present here and they need not be repeated.
We can understand why nisi prius judges would prefer to consolidate cases like these before us, but until there is legislation to permit such consolidation, we plan to follow the cases here cited.
Writ granted.
LIVINGSTON, C. J., and LAWSON, HARWOOD and MADDOX, JJ., concur.