Cotton States Fertilizer Co. v. Gordon

Bkoyles, C. J.

1. In each of these cases the motion to dismiss the bill of exceptions, on the ground that, under the consolidation and trial together, “there was only one case to bring to this court which should have been done by one bill of exceptions,” is denied.

2. Where two actions in favor of the same plaintiffs against different claimants were pending in the same court, and the issues involved in them and the evidence relating thereto were so nearly identical as to render it practicable to try both cases together before the same jury and at the same time, it was competent for the court, with the consent of counsel, to pass an order that the eases be consolidated to the extent of trying them together. When the two cases were consolidated and tried together, and the jury rendered in favor of the plaintiff a separate verdict against each of the claimants, the proper practice was for each claimant to file a separate motion for a new trial. Western Assurance Co. v. Way, 98 Ga. 746 (27 S. E. 167) ; Dickey v. State, 101 Ga. 572 (28 S. E. 980); Brown v. L. & N. R. Co., 117 Ga. 222 (43 S. E. 498); Harris v. Gano, 117 Ga. 934 (44 S. E. 11).

In the instant cases, after they were consolidated and tried together, and separate verdicts in the plaintiff’s favor against the claimants respectively were returned and separate judgments entered up thereon, the two claimants filed a joint motion for a new trial, and upon the hearing of the motion the plaintiff made a timely motion to dismiss the motion for a new trial on the ground that each of the claimants should have filed a separate motion for a new trial instead of filing one joint motion. The court refused to dismiss the motion for a new trial. Meld: The court erred in so refusing, and that error rendered the further proceedings in the case nugatory. The holding in Citizens & Southern Bank v. Palmer, 164 Ga. 557 (139 S. E. 55), is not contrary to the instant ruling, for in that case there was one claimant only.

Decided July 15, 1931. II. McWhorter, J. F. Floyd, for plaintiff. Marion Turner, for defendant.

Judgments reversed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.