2 Wilson 341 | Tex. App. | 1884
Opinion by
§ 390. Consolidation of suits; not error to refuse, when; case stated. Appellees brought this suit to recover of appellant $1,000 damages for an alleged refusal by appellant to receive and ship one hundred and sixty thousand feet of lumber on its line of railway. Appellee also instituted a similar suit against appellant for refusing to receive and ship cross-ties, at a different date. Appellant moved to consolidate these two suits, and to dismiss, when consolidated, for the want of jurisdiction. The motion to consolidate was overruled, and appellee recovered judgment for $520 damages, and for costs. Held: Where several suits are pending in the same court, between the same parties, in which the causes of action might be joined, it is made discretionary with the couyt to consolidate them upon motion. [E. S. art. 1450.] If the exercise of this discretion be revisable at all in this court, it would only be exercised in a case where an abuse of such discretion is manifest against the party complaining. Where the causes of action are separate and divisible, and suits have been brought in a forum having jurisdiction, the refusal to consolidate, when such consolidation would operate to oust the court of jurisdiction, is not error. [Ante, § 323.] In this cause the cause of action was a refusal to carry lumber; in the other, a refusal to carry cross-ties. The causes of action were separate, and two actions could be maintained thereon.
§ 391. Freight money; prepayment or tender of, to carrier; rules of law as to; allegation as to. With regard to the freight money for the shipment of the lumber, the allegation in the petition was, that plaintiffs were, at the bringing of this suit, and had always been, ready to pay the freight and charges upon said lumber. The evidence showed that neither prepayment, nor tender, of the
§ 392. Evidence; expert testimony. It is complained of as error that the witness Hays was allowed to give his opinion as to the number of feet of lumber offered to be shipped, without having ascertained the exact number of feet by actual measurement. Held, not error. The evidence showed that the witness was an expert in the lumber business.
Affirmed.