Succession of Justus

16 So. 841, 47 La. Ann. 302, 47 La. Ann. 303

• Court: Supreme Court of Louisiana
• Decided: July 1, 1895
• Docket: No. 11,533
• Status: Published

Opinions

On the Motion to Dismiss.

The opinion of the court was delivered by

Nicholls, C. J.

In this succession at a sale made under an order of the Civil District Court, Mrs. L. Huy became the adjudicatee of three pieces of real estate, each piece being adjudicated to her separately. On her refusal to comply with the adjudications, the executor took three separate rules against her, one relating to each piece of property, to show cause why she should not be compelled to comply with the adjudications.

By order of court the three rules were consolidated, and being taken up together as one single ease, were tried, evidence adduced and one single judgment rendered in favor of the succession, making the rules absolute. Prom this judgment Mrs. Huy appealed, and a motion to dismiss the appeal has been filed in this court on the ground “ that it has no jurisdiction, as the adjudication of each piece of property was for a price less than two thousand dollars and therefore below the lower limit'of the jurisdiction of this court.”

The aggregate amount of the price of the three adjudications is above that limit. We are of opinion that we have jurisdiction in this case.

In Offut vs. Roberts, 12 Martin, 300, the court said: “We take the effect of the consolidation to be that the cases are to be considered as if the facts of both petitions were introduced in one or several counts, and those of the two answers were put together. On suits thus consolidated, but one judgment can be regularly given.” And in Heirs of Bailio vs. Prudhomme et al., 8 N. S. 388, wherein judgment in the” District Court was rendered after a consolidation of two separate suits which had been brought by plaintiffs against the defendants, and wherein the aggregate amount, but not the separate amounts involved in the suits, would authorize the appeal, it declared in refusing the motion to dismiss “as the consolidation took place with the consent of the plaintiffs, it was of opinion that both, actions must be considered as one in relation to the matters in dispute. ’ ’

The trial of different cases together must not be confounded with the cumulation or consolidation of cases (see Armitage vs. Barrow, 10 An. 79). The mere trial of cases at the same time leaves them as distinct as they were before, but consolidation works the result-which amendments when allowed bring about.

“Amendments, when allowed, form part of the pleadings, and; plaintiffs demand is precisely what it would have been had the original and amended petition been filed at the same time, so that the court must decide on both, and can not give judgment on one alone.”' Hennen’s Digest, 1182, No. 2; Lanusse vs. Massicot, 3 Martin, 41; King vs. Wartelle, 14 An. 750.

The three rules which the executor caused to be taken could all' have been properly combined or. cumulated in one original, and we see no good reason why this was not done, as the law does not favor-a multiplicity of suits and an unnecessary, entailment of costs. The judge rightly consolidated them. Appellee says in her brief that this was done over her objection, but if objection was made the fact does not appear of record. Her position is one of acquiescence if not actual consent. This case is not that of several distinct plaintiffs •with distinct causes of action uniting in one suit against a single defendant, or one plaintiff proceeding against several defendants on a separate cause of action against each. Therefore decisions which go to show that appeals have been dismissed in this court in cases of that character for want of jurisdiction are not pertinent. The only authority cited by appellee which bears any resemblance at all to the present is that of the claim of Hopkins referred to in Louisiana Railroad Co. vs. Hopkins, Kennedy et al., 33 An. 808, which seems to have been decided upon a special state of facts, not identical with those which appear in this.

We think the motion to dismiss the appeal is not well taken. The appeal must be sustained.