Summary
In Hagan v. Riddle Co., 209 Ala. 606, 96 So. 863, it was pointed out that the statutory proceeding for consolidation was not exclusive of the inherent or implied from the general power of a court of equity in a proceeding in rem, when no personal judgment is sought to order a consolidation in a proper case; and the exercise of such power rests in the sound discretion of the court, which may order consolidation or refuse to do so.
Summary of this case from Ex Parte AshtonOpinion
8 Div. 519.
June 9, 1923.
Appeal from Circuit Court, Limestone County; Osceola Kyle, Judge.
R. B. Patton, of Athens, for appellant.
The statutory right of consolidation is only applicable to causes pending between the same parties. Courts of equity are without power to consolidate without notice to the parties to the pending litigation. Code 1907, § 5358; Sou. Ry. v. Clarke, 203 Ala. 248, 82 So. 517; 1 R. C. L. 360; Ex parte Brown, 58 Ala. 536.
W. R. Walker, of Athens, for appellee.
No brief reached the Reporter.
The cause was submitted on demurrer to the original bill, having for its purpose the enforcement of a materialman's lien.
The averments of facts as to advisability of consolidation of the instant suit with the other pending causes to like effect in the same court, did not destroy the equity of the bill, or prevent the court, in the exercise of a sound discretion and in a proper case, from ordering consolidation or hearing the causes at the same time "without the consent of the parties thereto." Ex parte Brown, 58 Ala. 536.
The lien claimed and filed in the probate office shows that the sale was made at "thirty days net"; and that the date of the sale was September 20, 1920. The claim was filed April 19, 1921, within six months of accrual of the claim for the material sold to the owner of the lots for use in the erection of a house thereon. Gilbert v. Talladega Hdwe. Co., 195 Ala. 474, 70 So. 660. The suit was brought within the time prescribed by statute. Code 1907, § 4777; Pilcher v. E. R. Porter Co., 208 Ala. 202, 94 So. 72.
The statutory provision for consolidation is not exclusive. Southern Ry. Co. v. Clarke, 203 Ala. 248, 82 So. 516. Under the inherent power of a court of equity, in a proper case, there may be a consolidation of causes in such a proceeding as this — a proceeding in equity, in nature a proceeding in rem, for the subjection of the property to the materialman's lien, when no personal judgment against the lienee is sought. Redd Bros. v. Todd (Ala. Sup.) 95 So. 276. If the court should exercise its reasonable discretion to the end of consolidation of the several suits for the enforcement of the lien in accordance with the statute (Code 1907, § 4776), requiring that all such liens on the same property shall be "on equal footing," this would have no other effect "than that the causes thus consolidated are heard at the same time." The issues remain precisely on the pleadings as they were before, between the same parties, and are determined exactly as if the causes had been heard separately. Handley v. Sprinkle, 31 Mont. 57, 77 P. 296, 3 Ann. Cas. 531, and note.
Ante, p. 56.
The power of a court of equity to consolidate suits, or hear such suits at the same time, is inherent or implied from its general power to make reasonable rules for the transaction and regulation of its business. We may observe that such a consolidation, or joint hearing, cannot be demanded as a matter of right, but is a matter resting within the sound discretion of the court, which may order consolidation or refuse to do so. Powell v. Gray, 1 Ala. 77; Monroe v. Brady, 7 Ala. 59, 1 C. J. §§ 313, 315, 325, et seq., pp. 1123, 1128. After all that may be said on the subject it is established in this jurisdiction that, where two or more suits are pending in the same court of equity, and the facts of each case need to be ascertained before the rights of any can be settled, such suits should be consolidated and heard together (Ex parte Brown, 58 Ala. 536), or there should be an order staying proceedings, that injustice and undue priority may not intervene (1 Danl. Ch. Pl. Pr. [6th Ed.] p. 793).
We have carefully considered the several grounds of demurrer, and are of opinion that they are not well taken.
The judgment of the circuit court, in equity, is affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.