Averitt v. Simpson

Beck, P. J. The motion to dismiss the writ of error must prevail. The order referring the two cases to the auditor for a hearing did not have the effect of consolidating the cases or causes of action. The eases .were brought at different terms of the court, and were against different defendants. The mere fact that these cases were ' [354] heard- by the auditor - at the same time and under one: order referring them could not have the effect of an order consolidating the cases.- -They remained two several and distinct causes of action. And while the court in one decree and based upon the report of the auditor adjudicated as to the rights of the several parties to the two causes of action, it was nevertheless a several decree- and judgment, and the plaintiff should, in order to bring tlie several judgments here for. review, have sued out a bill, of exceptions- in each of the cases. This ruling needs.no elaboration; it has been explicitly decided in former decisions by this court. In the case of Purvis v. Ferst, 114 Ga. 689 (40 S. E. 723), it was said, in-the headnote: “When in each of several cases between the same par^ ties- there was a demurrer by the plaintiff to the answer of the defendant, -and by agreement, but without consolidating the cases-into one, the demurrers were “heard -together,’ the. defendant could not properly sue out a single -bill of - exceptions assigning error solely upon the sustaining of such demurrers; and this, is -so- although, after the demurrers were sustained,- the. pases were by a formal order consolidated into-one and tried as such,, and a verdict and judgment were therein rendered for the plaintiff.” In the opinion it was said: “We are of the opinion that the motion to dismiss is well taken and should be sustained. It is settled by the decision in Wells v, Coher Banking Co., 113 Qa. 857 [39 S. E. 298], that a mere agreement to try several cases together does not amount to a consolidation of the cases into- one, and that, under such circumstances, the losing party can not, by a single bill of exceptions, “bring-to this court for review the judgments severally rendered-in-such cases-in the court below.’ In the opinion ■ de.livered in the case last cited, reference is made to the case of Erwin v. Ennis, 104 Ga. 861 [31 S. E. 444]. There, three, cases, without being consolidated,- were submitted to -the -decision- of .the presiding judge without the intervention of. a jury. • Though he disposed of them by a single order, it was nevertheless held -that the losing party could not, by a -single bill of exceptions, bring the three cases here for review. It does not, in the case now before us, affirmatively appear whether the “ruling’ made -by -the judge -in disposing of the several demurrers to the defendants’ answers was embodied in-one order or several, but-this makes no difference; for even if only a .single order was passed, it should be treated as a [355] judgment applying severally and seriatim to each of the four demurrers.” In the case of Wells v. Coker Banking Co., supra, it was held: “The mere fact that several separate and distinct cases 'arising under the same contract,’ and being between the same parties, were 'by agreement, , . tried together’ before the judge 'presiding as judge and jurjr,’ did not have the-effect of consolidating these cases into one, so as to authorize the losing party, by a single -bill of exceptions, to bring to this court for review the judgments severally rendered in such cases in the court below.” In Brown v. L. & N. R. Co., 117 Ga. 222 (43 S. E. 498), it was held: (1) “An order passed, upon an agreement between counsel, that two suits, each based solely upon a common-law cause of action, in favor of different plaintiffs against the same defendants, 'be consolidated and tried together,’ does not have the effect to merge the two cases into one, but the effect of such order is to provide simply.that the suits be consolidated only to the extent of being tried together,” citing the Erwin, Wells, and Purvis cases, supra. (2)" “When under such an agreement the two cases are tried together upon demurrers filed in each by the defendants, and a separate judgment sustaining the demurrer in each has been entered up, the plaintiffs have a right to except separately .to such judgments. Where, however, the plaintiffs bring but a single bill of exceptions to this court and seek'thereby to review both the judgments, the writ of error must be dismissed; for this court has no jurisdiction. Walker v. Conn, 112 Ga. 314 [37 S. E. 403], and cases cited; Wells v. Coker Bkg. Co., Purvis v. Ferst, supra. See also Bates v. Harris, 112 Ga. 34 [37 S. E. 105].” ’ The fact that the court, in an order passed after the cases were heard, may have referred to the order taken as one of consolidation, did not have the effect of converting the original order into one of actual consolidation or merger of the two cases. In order to consolidate two cases so as to make them actually one, it was necessary that there should have been an order to that effect. Such an order is not a mere formal matter; it affects the material rights of the parties in the case, and parties may except to an order of consolidation improperly granted. In the case of City of Dalton v. Elk Cotton Mills, 146 Ga. 89 (90 S. E. 718), it was ruled: “It is error to consolidate.two or more eases which are'not between the same parties and which do not involve the same pleas [356] upon which the same judgment may be rendered.” And in the ease of Center v. Pickett Paper Company, 117 Ga. 222 (43 S. E. 498), it was held: (1) “Where two common-law actions, in favor of different plaintiffs and against the same defendant, were tried together before the same jury; in accordance with an order of court that they be 'consolidated and tried together,’ and a separate judgment of nonsuit was rendered in each case, this court has no jurisdiction of a single bill of exceptions, jointly sued out by the plaintiffs, wherein it is sought to have both judgments reviewed; and the writ of error must be dismissed;” citing Brown V. L. & N. R. Co., supra. (2) “For want of jurisdiction in such a case, this court can not entertain a motion made by one of the plaintiffs in error that his name be stricken from the bill of exceptions and that the case proceed in the name of the other plaintiff in error.” It follows from what we have said that this court is without jurisdiction 'to entertain the writ of error. Writ of error dismissed. All the Justices concur.