Phelps v. McCotter

112 S.E.2d 736 (1960) 252 N.C. 66

W. B. PHELPS
v.
S. F. McCOTTER and L. G. McCotter.

No. 99.

Supreme Court of North Carolina.

February 24, 1960.

R. E. Whitehurst and David S. Henderson, New Bern, for plaintiff, appellee.

Sam J. Morris and J. W. Hinsdale, Raleigh, for defendants, appellants.

PER CURIAM.

Defendants' only assignment of error is to the denial by the court of their motion for consolidation for trial of the instant case and the special proceeding for actual partition.

Whether or not consolidation of cases for trial, where permissible, will be ordered is in the discretion of the court. Horton v. Perry, 229 N.C. 319, 49 S.E.2d 734; Peeples v. Seaboard Air Line R. Co.; (Edwards v. Seaboard Air Line R. Co.; Kearney v. Seaboard Air Line R. Co.), 228 N.C. 590, 46 S.E.2d 649; Robinson, Hudson, and Blackburn v. Transportation Co., 214 N.C. 489, 199 S.E. 725; Person v. President, etc., of State Bank, 11 N.C. 294; McIntosh, N. C. Practice & Procedure, 2d Ed., Vol. I, p. 739; 53 Am.Jur., Trial, § 66; 1 C.J.S. Actions § 109d. "If the conditions essential to authorize a consolidation do not exist, the court has no discretion to exercise." 1 C.J.S. Actions § 109d, p. 1346.

The motion to consolidate here was addressed to Judge Bundy's discretion. He denied the motion. As there is nothing in the record to indicate that he denied the motion as a matter of law, it will be presumed that Judge Bundy denied it in his discretion. Lowman v. City of Asheville, 229 N.C. 247, 49 S.E.2d 408, and cases there cited. We cannot say, as a matter of law, from an inspection of the record that Judge Bundy's denial of the motion constituted an abuse of discretion—particularly in view of the well established principle that there is a presumption in favor of the regularity and validity of the proceedings in the lower court, and the burden is upon the appellant to show prejudicial error in the case on appeal. Durham v. Laird, 198 N.C. 695, 153 S.E. 261; McIntosh, N. C. Practice & Procedure, 2d Ed., Vol. 2, pp. 238-9. And, therefore, we are constrained to affirm the denial below of the motion for consolidation for the purpose of trial.

Affirmed.