124 Mo. App. 600 | Mo. Ct. App. | 1907
Two separate actions were instituted in idle circuit court between these parties to recover damages for injuries to stock. In one of the actions the petition contained two counts to recover the value of two horses alleged to have been damaged by running against a barbed wire fence while under the influence of fright induced by a passing train. Each count alleges defendant’s line of railroad was not inclosed by a good and lawful fence at the point where the horses entered. The other action was instituted to recover double damages for injuries to a horse struck by a train, said horse having entered on the right of way on account of a defective fence. Defendant filed, in the two cases, general denials and also pleas in bar, stating that the several injuries to plaintiff’s property sued for existed at the
“And so the defendant says that plaintiff is barred from prosecuting either of said suits, because the said plaintiff had harassed and is still harassing this defendant by dividing one entire demand and one cause of action, and instituting two suits against this defendant for the same, and defendant prays judgment herein against this plaintiff for costs.”
On motions filed by the plaintiff the pleas in bar were struck out in both cases as constituting no defense, thus leaving nothing to be tried but the issues framed by the petitions and the general denials. Thereupon the court called both cases and both parties announced ready for trial. Immediately following this announcement, the court, of its own motion, consolidated the two actions, directing that the petition in the action for double damages be treated as the third count of the petition which originally contained two counts. After this order the two actions stood as one, in which the petition contained three counts, to-wit; the first two for single damages for injuries to two horses due to their running into a barbed wire fence in consequence of being frightened by the negligence of defendant’s servants, and the third for double damages for injuries to a horse from contact with a locomotive. An exception saved to the order of the court consolidating the two causes presents the only question to be considered. The case was tried by a jury and resulted in a verdict in plaintiff’s favor on all three counts. After looking into all the cases dealing with the consolidation of actions which we have found cited in the legal digests and encyclopedias, our conclusion is
Neither do we assent to the contention that no prejudice resulted to the defendant from the consolidation. The issues to be tried were entirely different and the law gave defendant a right to a separate jury to try each set of issues.
The judgment is reversed and the cause remanded, with directions to the court to set aside the order consolidating the causes and try them separately.