Biron v. Edwards

Evos, J. It may be observed at the outset that in any action to charge the defendants Edwards and Scott with the profits realized out of the lands belonging to the estate of Erancis Biron, deceased, which were conveyed by the administrator of that estate to Edwards, all the heirs of Francis Biron, and the defendants Edwards and Scott, are necessary parties thereto. Without the presence of all of them as parties, the court cannot make a full and final determination of the controversy. 'This is conceded by the learned counsel for the appellants. The order from which these appeals .were taken brings in Francis Biron, Jr., one of such heirs who had not theretofore brought any action, as a party to the consolidated action, [484] at bis own request. If tbe four actions were properly consolidated into one action, it is manifest that this was correct practice. In tbis particular tbe order bas no necessary connection with tbe order of consolidation. Tbe case stands just as it would have stood bad an order been made consolidating tbe four actions, and afterwards another order bringing in Francis Biron, Jr., as a party plaintiff in tbe consolidated action, or bad be been thus brought into each action before tbe consolidation. Hence, tbe controlling-question on these appeals is, Were tbe four actions properly consolidated? J In each of tbe four actions tbe complaint states a cause of action in equity in favor of tbe plaintiff and against tbe defendant therein. Tbe transactions out of which each such cause „of action arose are common to all tbe actions. Tbe evidence which will sustain a recovery in one will sustain a recovery in each of tbe others as tbe cases now stand. In every conceivable contingency tbe rights of each defendant, as against any or all of tbe plaintiffs, can be fully protected in tbe consolidated action. It would be a violation of well-settled rules of procedure to allow these four actions to proceed pari passu, for it is manifest that but one action is necessary fully to settle the rights of tbe parties to all of them, and but one can be allowed to proceed. Tbis is not controverted by either party. Tbe question is purely one of practice. By what procedure shall the whole controversy be concentrated in one action? This might have been accomplished by bringing in all tbe heirs and both defendants in one of tbe actions, and dismissing tbe other three. If we correctly understand the position of counsel for appellants, they insist that this was tbe only proper practice. Again, instead of dismissing three of tbe actions, tbe court might have stayed proceedings therein during tbe pendency of tbe other action. We perceive no valid objection to this practice bad it been adopted. [485] But instead of pursuing either course suggested, the court formally consolidated the four actions into one action, provided for pleadings da novo in that action, and in the exercise of its discretion made what seems to be an equitable provision as to the costs of the. actions thus consolidated; If it be conceded that the practice adopted is not teak-nically regular, we do not understand how the appellants could possibly be injured by it, or what advantage would have accrued to them had the court, instead of consolidating the actions, stayed proceedings in or dismissed three of them. If the appellants are not injured by the alleged irregular practice (and we think they are not), it is no ground for reversal of the order of consolidation. But we do not think the consolidation is irregular. We cannot doubt that the power inheres in a court of equity, in its discretion, to consolidate causes pending therein for the purpose of avoiding a multiplicity of suits and trials, when the consolidation can work no injury to any party. This power is essential to the proper administration of justice, and does not depend upon any statute for its existence. Counsel for appellants claim there are many limitations of the power, indeed deny that it pertains to a court of equity, but we think they take too narrow á view. There is some apparent conflict in the cases on the subject, some of them holding certain limitations on the power which others reject. ¥e shall not attempt to review or reconcile the cases, but must determine the question on what seems to us the better reason. So on these appeals we cannot hesitate to hold that, inasmuch as the results of a consolidation of the four causes must be attained in some manner, and can be attained by consolidation without injury to any'party, and inasmuch as the power to consolidate these causes inheres in the court, it was not irregular or erroneous thus to consolidate them. It may be added that our statute on the subject contains [486] no limitation which, interferes with the power of the court to make the consolidation. R. S. sec. 2792. The ■ statute reads thus: “ When two or more actions are pending in the same court which might have been joined, the court, or a judge, on motion, shall, if no sufficient cause be shown to the contrary, consolidate them into one by order.” Every condition of the statute is here present. We have two or more actions pending in the same court which might have been joined. A motion is made to consolidate them into one action, and no sufficient cause has been shown to the contrary. The case of Winninghoff v. Wittig, 64 Wis. 180, cited on behalf of appellants, is not opposed to the above views. It was there held that cross-actions cannot be consolidated, for the very conclusive reason that in their very nature they cannot be joined in one action. It was not there intended to be held that the parties to each of the actions proposed to be consolidated must necessarily be the same. Such is not our statute, and we find no authorized restriction upon the power of the court in that behalf. The order of consolidation must therefore be affirmed on each appeal. By the, Gowrt. — ■ Order affirmed.