Railroad Commission v. Southern Railway Co.

Atkinson, J. The first assignment of error is upon the ruling of the trial judge refusing to consolidate with this case another case instituted by the Southern Bailway Company against the Boswell Bailroad Company, which was a suit for the appointment of a receiver and for administration of the properties of that company in winding up its corporate affairs. The plaintiff in that case sued as a creditor and stockholder of the defendant company. The Civil Code (1910), § 5419, declares: “Where there is one common right to be established by or against several, and one is asserting the right against many, or many against one, equity will determine the whole matter in one action.” § 5520, declares: “ Suits between the same parties, arising under the same contract, involving the same pleas and upon which the same verdict may be rendered, may be consolidated if the aggregate amount does not exceed the jurisdiction of the court.” In Lewis v. Daniel, 45 Ga. 124, it was held: “It is in the discretion of the judge of the superior court to consolidate two cases sued in [309] that court into one, on the motion of defendant. Such discretion will not be interfered with unless abused.” The exception in that ease was to a ruling refusing a motion by the defendant to consolidate two cases brought against him by the same plaintiff, in the superior court. One suit was to enforce an agreement between plaintiff and defendant as partners, whereby the defendant had bound himself in certain contingencies to refund money to plaintiff. The other was a suit on a note given by defendant to plaintiff and for rent collected by defendant for plaintiff. In Gerding v. Anderson, 64 Ga. 304, it was held: “ To require the superior court to consolidate three actions on three promissory notes into one, the defendant must make it appear to the court either that he has no defense, or that the defense is the same to all of the notes; and in the latter case he must aver what that defense is, so that the court may adjudge whether it be the same in all the cases.” In the course of the opinion it was said: “There can be no doubt of the right of the defendant ordinarily to consolidate, if there be no detriment thereby to the plaintiff on the merits of the cases. To show that there will be no hurt to the plaintiff, defendant must show either that he has no defense or that the same defense applies to all the cases; and in order to show the court the latter fact, he must disclose what that defense is. For it is for the court to decide whether the facts make the defense the same in each case. If the consolidation will work harm to the plaintiff, or if it would make the aggregate sum sued for so large as to oust the jurisdiction, and, on the sam'e principle, if it would make him try different issues on different pleas in one case to several notes, the consolidation will not be allowed.” In Georgia Railroad &c. Co. v. Gardner, 118 Ga. 723 (45 S. E. 600), it was held: “Where; pending an action against a railroad company for trespass to land, the company makes application to have the land condemned as the property of the plaintiff in the action for trespass, such application, there being no award made by the appraisers and consequently no appeal from an award, is not such a suit as should be consolidated with the action for trespass. Until an award has been made and an appeal taken therefrom, there is nothing in court to be tried in the condemnation proceeding. Such condemnation proceeding is no bar to the action for trespass, nor is the action for trespass merged in the condemnation proceeding.” [310] In the course of the opinion it was further stated: “Moreover this court is loath to interfere with the discretion of the trial judge in refusing to consolidate cases, unless there is a very plain case of abuse, to the detriment of the defendant.” This excerpt from the opinion properly states the rule as applicable in this court in cases which could be legally consolidated. The cases which the'judge refused to consolidate, which refusal forms the basis of the assignment of error under consideration, were not between the same parties, and involved issues which had no relation to the other. In the circumstances, even if the judge would have been authorized to consolidate the cases, there was no abuse of discretion in refusing to do so. See also 1 C. J. 1123, 1124., After the refusal to consolidate with the case on trial the other case instituted by the Southern Eailway Company against the Eoswell Eailroad Company for receiver and other equitable relief, the trial proceeded, and the court admitted in evidence the record in the other suit, which included the judgment appointing a temporary receiver of the Eoswell Eailroad Company and a subsequent judgment appointing a permanent receiver, and an order of the court directing the receiver to sell the railroad of the Eoswell Eailroad Company. All of this record was offered as evidence to support the allegations of the petition as amended, alleging, as grounds for enjoining enforcement of the order of the Eailroad Commission against the Southern Eailway Company, that the affairs of the Eoswell Eailroad Company had been placed in the hands of a receiver and its property was in possession of the court, and it was impossible for the Southern Eailway Company to comply with the order of the Eailroad Commission requiring the latter company to resume operation of the railroad of the Eoswell Eailroad Company. The petition was amended in such manner as to allege the grounds of relief just stated, and there was no objection interposed to the allowance of such amendment, or, if any was stated, there was no assignment of error on the ruling allowing the amendment. The evidence was material, and sustained that phase of the plaintiff’s case; and the court did not err in admitting the evidence over the objections urged to its admission. The uncontradieted evidence demanded a finding that, in the equity case for the appointment of a receiver of the Eoswell [311] Railroad Company, other creditors had intervened, seeking the appointment of a receiver and marshaling of the assets, and that the judge had appointed a permanent receiver, and under such appointment the receiver had taken possession of the railroad of the Roswell Railroad Company and held it and all other assets of the company as an officer of the court, and that the receiver was proceeding with the administration of the assets of the corporation, in the course of which he had applied for and obtained an order from the court for the sale of the railroad and was proceeding to carry out the order of sale. In these circumstances the Southern Railway Company would have had no power to interfere with the property in the hands of the receiver, and consequently could not comply with the order of the Railroad Commission directing the Southern Railway Company to resume operation of the railroad. This alone would have authorized a direction of the verdict enjoining enforcement of the order of the Railroad Commission. In view of the foregoing it becomes unnecessary to deal with other questions. Judgment affirmed. All the Justices concur, except Hines, J., disqualified.