Pittman Construction Co. v. Houston Fire & Casualty Insurance

HALL, Judge. These two suits were consolidated for trial below and the appeals therefrom were consolidated for hearing in this Court. Our docket No. 3527 involves an appeal by the plaintiff, Pittman Construction Company, from a judgment rendered in favor of the defendant, Houston Fire & Casualty Insurance Company, dismissing plaintiff’s suit under the provisions of LSA-C.C.P. Art. 561 for failure of the parties to take any steps in its prosecution or defense for a period of five years. In its brief herein appellant, Pittman Construction Company, states the facts as follows: “ * * * An examination of the record will reveal that this suit was filed on May 27, 1955, and answer and third party petition was filed on November 15, 1955 and a motion to consolidate was filed on January 6, 1956, but no further action was taken towards prosecution of this case until March 13, 1963.” The facts as set forth in appellant’s brief show clearly that more than five years has elapsed since the last action was taken herein and appellant, citing Tucker v. Tucker, La.App., 150 So.2d 665, prays that the judgment appealed from be affirmed. Appellee, Houston Fire & Casualty Insurance Company, agrees with the facts set forth in appellant’s brief and prays that the judgment appealed from be affirmed; but Houston Fire & Casualty Insurance Company particularly calls our attention to the fact that it is not a party to the case (our No. 3544) consolidated herewith and that anything done by the parties in that action has no effect on this action, citing Darouse v. Mamon, La.App., 201 So.2d 362; Stephney v. Robertson, La.App., 219 So.2d 9 and Voth v. American Home Assurance Company, La.App., 219 So.2d 236, to the general effect that consolidation of, cases for trial is a procedural convenience and does not merge the actions unless the records clearly reflect an intention to do so. Since both appellant and appellee pray that the judgment appealed from be affirmed the judgment is hereby affirmed; costs of both Courts to be borne by appellant, Pittman Construction Company. Affirmed.