Durham v. . Laird

153 S.E. 261, 198 N.C. 695, 1930 N.C. LEXIS 451

• Court: Supreme Court of North Carolina
• Decided: May 21, 1930
• Docket: Docket 14406; Docket 14407
• Status: Published

Opinion

BbogdeN, J.

The sole question of law presented by this appeal is whether the trial judge had the power in his discretion to refuse to consolidate the actions.

The cause discloses substantially the following fact setting: A plaintiff brings two suits on the same day, against the same defendants for damages growing out of an automobile collision. In one suit the plaintiff seeks to recover damages for personal injury, and in the other suit compensation for property damage growing out of said collision. The defendants, among other things, plead the pendency of each suit as a bar to the other, and the plaintiff replies that in the suit for property dam-áge the Insurance Company of North America is subrogated to a portion of such damage.

In determining the legal aspect of consolidation the general rule is that the trial judge has the power to consolidate actions involving the same parties and the same subject-matter if no prejudice or harmful complications will result therefrom. This salutary power is vested in the judge in order to avoid multiplicity of suits, unnecessary costs and delays, and as a protection against oppression and abuse. Blount v. Sawyer, 189 N. C., 210, 126 S. E., 512; Fleming v. Holleman, 190 N. C., 449, 130 S. E., 171; Rosenmann v. Belk-Williams Co., 191 N. C., 493, 132 S. E., 282.

Whether the order of consolidation is entirely discretionary and not reviewable on appeal is an open question in this jurisdiction. Wilder v. Greene, 172 N. C., 94, 89 S. E., 1062. The whole subject is discussed with singular clearness and accuracy in McIntosh on North Carolina Practice and Procedure, pp. 536-539, where all the pertinent authorities in this State are assembled. However, if two consecutive actions are brought, involving the same parties and the same subject-matter, and the second action cannot be maintained, then in such event, consolidation is not proper. Mfg. Co. v. Tirney, 130 N. C., 612, 41 S. E., 871.

On the present state of the record we are not concerned with the question as to whether the action for property damage would lie because there is no motion to dismiss, upon the principle announced in Underwood v. Dooley, 197 N. C., 100. The trial judge based his refusal to consolidate the actions upon his discretion, and we cannot say, as a matter of law, from an inspection of the record, that such order constituted an abuse of discretion — particularly in view of the well established principle that there is a presumption in favor of the validity of a judgment. And, therefore, we are constrained to affirm the decree of the trial court.

Affirmed.