Walker Electrical Co. v. Walton , 201 Ga. 591 ( 1946 )

Where a common right or interest is not shown in all of the plaintiffs in one or more of the actions sought to be consolidated, it is not error to dismiss on general demurrer the petition for consolidation.

No. 15509. SEPTEMBER 5, 1946. REHEARING DENIED OCTOBER 11, NOVEMBER 15, 1946. Walker Electrical Company, a corporation, C. P. Owens, and H. L. Blum, filed an equitable petition, against H. G. Walton, in the Superior Court of Fulton County to consolidate five cases filed by Walton. As shown by copies attached to the petition, Walton had filed three separate suits against Walker Electrical Company in the Civil Court of Fulton County, and a separate suit against C. P. Owens, and a separate suit against H. L. Blum, each in the Superior Court of Fulton County. From the exhibits (copies of the five suits) it appears that in the first case filed by Walton against Walker Electrical Company he was seeking a recovery for an alleged breach of a written contract (copy of which was attached as an exhibit) in the sum of $2479.03. The second of the three suits was a trover action to recover certain personal property; and the third suit was to recover $2180.10, alleged to be due Walton by the defendant, Walker Electrical Company, for repairs on a building of the defendant. In the suit by Walton against Owens in the superior court, a recovery was sought of $4512.04, for alleged repairs to the house of Owens, under employment by Owens. The action by Walton against Blum sought a recovery, for repairs on the latter's house, of $9191.42, under an alleged contract with Blum.

In the petition to consolidate it is contended: That the five cases should be consolidated in order that a full accounting might be had between the parties and a multiplicity of suits avoided. That Walton by reason of certain defective work, as shown by an itemized exhibit, is indebted to Walker Electrical Company in the sum of $15,632. That Owens and Blum and one other person are the sole stockholders of Walker Electrical Company; that the corporation, through an arrangement of its stockholders among themselves, contracted with Walton for the repairs on the residences of Owens and Blum; and that Walton at no time had any contract or agreement with either Owens or Blum. That by reason of defective work on the part of Walton on the individual jobs, a large part of the work had to be done over and expense incurred, as shown by exhibits attached, in the amount of $6377 on the Blum job, and $2458 on the Owens job. The corporate plaintiff has counterclaims against Walton far in excess of the jurisdiction of the Civil Court of Fulton County. Other matters of overpayment, duplication of payment, counterclaims, and setoff are alleged. That all matters in dispute in the five suits grow out of a series of transactions between the corporate plaintiff and Walton, and all controversies grow out of a series of interwoven transactions. It is alleged that Walton is insolvent. The prayers are for process; that temporary injunction issue restraining the defendant from prosecuting the three cases pending in the Civil Court of Fulton County; that the five cases be consolidated and referred to an auditor; and that the plaintiffs have judgment that neither they nor either of them is indebted to the defendant.

The defendant filed a general demurrer, which was sustained. The exception is to that judgment. "Where there is one common right to be established by or against several, and one is asserting the right against many, or many against one, equity will determine the whole matter in one action." Code, § 37-1007. This section was taken from the decision of this court in Smith v. Dobbins, 87 Ga. 316 (13 S.E. 496), where the almost identical language of the section was quoted by this court from 1 High on Injunctions, § 12. Section 37-1007 has been construed by this court in numerous decisions. One of the earlier cases, frequently cited, is White v. North Ga. Electric Co., 128 Ga. 539 (58 S.E. 33), where it was stated: "A petition which embraces two claims by separate and distinct parties against separate and distinct parties, where there is no common right to be established, is multifarious." It was further held in White v. North Ga. Electric Co., supra (at page 542): "If there is a common right and the court of equity takes jurisdiction, there is no limit to which the court will not go in order to do complete justice, but where there is no common right, equity will not, for any purpose, entertain a suit wherein separate and distinct parties with separate anddistinct claims unite against one or more parties. The statutes simply prohibit the joining of such claims in one suit." (Italics ours.) See also Spinks v. LaGrange Banking Trust Co.,160 Ga. 705 (129 S.E. 31); Hines v. Wilson, 164 Ga. 889 (139 S.E. 802); McCowan v. Snook, 175 Ga. 430 (165 S.E. 84);Coppedge v. Allen, 179 Ga. 678, 682 (177 S.E. 340);Benton v. Turk, 188 Ga. 710, 730 (4 S.E.2d 580); where this court has further construed "one common right."

The rule quoted in White v. North Ga. Electric Co., supra, with reference to the joining of separate claims against different persons, is in accord with the Code, § 3-110, which provides: "Distinct and separate claims of or against different persons shall not be joined in the same action. Where the damage as well as the interest is several, each party injured shall sue separately." The Code, § 3-112, provides: "Suits between the same parties, arising under the same contract, involving the same pleas and upon which the same verdict may be rendered, may be consolidated if the aggregate amount shall not exceed the jurisdiction of the court."

The determination of the present cause for the consolidation of the five suits involves a construction of the term "one common right." In Sanders v. Wilson, 193 Ga. 393, 395 (18 S.E.2d 765), it was held: "Ordinarily a prerequisite to the consolidation of cases is that the causes be such as could have been joined in one petition." Walker Electrical Company is a legal entity, and the fact that the two defendants sued by Walton in the superior court, Owens and Blum, are large stockholders in that company, does not give them such a common interest in the result of the litigation against the corporation as would authorize the consolidation of suits against each of them as individuals with the three suits against the corporation. If, as contended in the petition to consolidate, the contracts for repairs on the residences of Owens and Blum were not made by each of them as individuals, but were made by the corporation, this fact does not give the corporation a common interest in the result of the litigation against them as individuals. Certainly no such common right is alleged or shown as would comply with the rule in Sanders v. Wilson, supra, in that there could not properly have been a consolidation of the five causes of action in one petition filed by Walton. As was stated in Sanders v. Wilson, supra: "Such an unauthorized consolidation of suits in this equity case would, as was said by this court in the equitable proceeding of Portwood v.Huntress, 113 Ga. 815, 819 (39 S.E. 299), ``bring about a promiscuous struggle,' and would result in no saving or benefit, but on the contrary, would merely cloud and confuse the issues in the two separate and independent controversies. See 1 C. J. S. 1355, § 110(b); and as to the general rules of consolidation, pp. 1278, 1279, 1350, 1351 ( §§ 97 [c], 110 [3, a])." Where no common right or interest is shown, the alleged insolvency of the defendant in the petition for consolidation would not confer a right of consolidation in the plaintiffs.

There is no merit in the contention of the petition to consolidate that the jurisdiction of the Civil Court of Fulton County is so limited as not to allow the corporate plaintiff relief for its counterclaims. The court's order on the demurrer was entered on April 9, 1946. By act of the General Assembly (Ga. L. 1946, pp. 287, 289), approved January 31, 1946, and effective March 1, 1946, there was conferred on the Civil Court of Fulton County, "concurrent jurisdiction with the Superior Court of Fulton County . . except as to cases arising from injuries to the person or reputation, and of which jurisdiction is not vested exclusively in other courts by the Constitution of the State of Georgia."

The trial court did not err in sustaining the general demurrer to the petition for consolidation.

Judgment affirmed. All the Justices concur.