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Eau Claire Fuel & Supply Company v. Laycock
MARSHALL, J. Plaintiff commenced an action against defendant in the circuit court, February 28, 1894. The complaint set out two causes of action, one of which, it was claimed, was referable by compulsory order, and the other not. Issue was joined, and thereafter the cause was referred to a referee to hear, try, and determine. Thereafter plaintiff commenced a second action to recover a second instalment on the claim set forth in one of the causes of action in the first suit.
Issue was joined, and thereafter defendant’s attorney moved the court for an order consolidating the two actions, which motion was granted by consent, and thereafter a motion was made by plaintiff’s attorney for an order referring the consolidated action to the referee previously appointed, which motion was granted, against the objection of defendant’s attorney. From the order this appeal was taken. It does not appear that the order referring the first action to the referee was ever vacated.
It was discretionary with the court to grant or refuse the motion to consolidate the tvsro actions. Blesch v. C. & N. W. R. Co. 44 Wis. 593. Therefore we hold, as a matter of practice, that the court, in granting the order appealed from, had a right to assume 83 that defendant’s attorney, by his motion' to consolidate the-two actions, consented that the consolidated action should be tried before the referee, and to make the order accordingly.
It would have been perfectly competent for the' court, in granting the order' of consolidation, to have done so on terms that the consolidated action should be referred to the referee. The order of consolidation having been granted, it was a mere matter of form, under the circumstances, to enter the order appealed from. The second action, under the circumstances, merged in the first.
Moreover, the consent to refer the first action amounted to a tacit admission that it contained a referable issue; hence the court, as an original proposition, could have referred the whole case under sec. 2864, R. S. Littlejohn v. Regents of University, 71 Wis. 437. By the Court.— The order of the circuit court is affirmed.