Brewster v. Stewart — 3 Wend. 441

Majority

p. 441

Brewster vs. Stewart

Headnote

A consolida¡¡‘°n ^¿nted where several pending he-*he brought at the same time, the tion in which ^ed^n^the same declara. tl0 J defence an the merits set up to entitle a defendant of the rule.

Motion for consolidation. Two suits were commenced by Brewster against Stewart by capias, served on the same day, returnable at the last August term. Two declarations were delivered, each containing one count on a justice’s ment, each judgment being for the sum of $54,67, eachrendered in the month of July, 1829, and a transcript of each was filed on the same day in the clerk’s office of the county of Oswego; it was not, however, shewn that the judgments were rendered on the same day, nor was there an affidavit of merits. The defendant before pleading obtained an order to stay proceedings, and now moved that the causes be consolidated, and that the plaintiff pay the costs of the motion,

Smith Brown, for defendant,

relied on 2 T. R. 639 ; 1 Johns. C. 28 ; Statutes, vol. 4, c. 280, § 7, enacted in 1818.

TV. C. Noyes, for plaintiff.

The object of compelling a consolidation of actions is to prevent the unnecessary accumulation of costs by the litigation of several suits at nisi prius, where the whole matter may be determined in one suit. (Tidd’s Pr. 557.) Here there is no pretence of a defence; he has not put in a plea, and for aught that appears, never will,

p. 442

This court have refused to consolidate actions, brought on severa] policies of insurance on one risk, though the question was the same on all, for the reason that the contracts were several; so they have refused to consolidate where the suits were on promissory notes, between the same parties ; (1 Caine’s R. 114, n. b.) and subsequently, where three suits were brought by the endorsee of three several notes against the same maker, all of which were due when the suits were commenced, a motion to consolidate was refused. (9 Johns. R. 262.) In the last case the court say, that when separate suits are brought upon notes or contracts made at the same time and which might have been united in one action, and when the defence is the same in all, they would be inclined to grant the rule; within this rule this motion cannot prevail, for it is not shewn that the judgments declared on were rendered at the same time, or that the defence would be the same as no defence whatever is set up.

By the Court,

The practice of the king’s bench seems to extend the consolidation rule to all actions between the same parties, brought at the same time, where the causes of action might be comprised in the same declaration. This court has not gone the same length, and even as late as 9 Johns. R. 262, in a case decided in 1812, amotion to consolidate was refused where three suits were brought by the same endorsee against the same maker on three prom, issory notes, all due at the commencement of the suits, and they brought at the same time, solely because the notes varied in dates, sums and times of payment. By the act of 1818 however, the courts are authorized, whenever several suits are brought and prosecuted by the same plaintiff against the same defendant for causes of action which by law may be joined, to order the several suits to be consolidated into one action, if in their discretion it shall seem to them meet and proper so to do. This provision is re-enacted in the Revised Statutes, (vol. 2, p. 383, § 36.) Its object was to prevent oppression by the unnecessary accumulation of costs. It does not require that a defence on the merits should be shewn to entitle the party to the interposition of the court. The motion is granted, but without costs.