Where there is one common claim to be asserted by or against several, and one is asserting the claim against many, or many against one, the court may utilize equitable powers to consolidate and determine the whole matter in one action.
(Civil Code 1895, § 4846; Civil Code 1910, § 5419; Code 1933, § 37-1007.)
Law reviews.- For article comparing sections of the Georgia Civil Practice Act with preexisting provisions of the Georgia Code, see 3 Ga. St. B.J. 295 (1967).
JUDICIAL DECISIONSANALYSIS
General Consideration
History generally.
- This section appears to have been codified from the decision in Smith v. Dobbins, 87 Ga. 303, 13 S.E. 496 (1891), where it was held that where several executions are levied upon the property of the same defendant, and one person files a separate claim in resistance to each levy, such claimant is entitled to proceed in equity against all the plaintiffs in execution, where the validity of the executions all involved the same question. Dobbs v. FDIC, 187 Ga. 569, 1 S.E.2d 672 (1939).
Purpose.
- This section allowing actions to be joined in order to avoid a multiplicity of suits is primarily for the convenience of parties to the case; and according to a number of authorities, whether it will be allowed is a question largely to be determined by the circumstances in the case. Lyle v. Keehn, 195 Ga. 508, 24 S.E.2d 655 (1943).
In equitable proceedings a judge of the superior court is empowered to consolidate two or more cases, in order to avoid useless consumption of the time of the court and needless expense to the taxpayers. O'Malley v. Wilson, 182 Ga. 97, 185 S.E. 109 (1936).
This section applies only where there is one common right, and one is asserting the right against many or many against one; it does not apply where there is only one party plaintiff and one party defendant. Walker Elec. Co. v. Walton, 203 Ga. 246, 46 S.E.2d 184 (1948).
Distinct and separate claims of or against different persons may not be joined in the same action, but when there is one common right to be established by or against several, equity will determine the matter as to all parties in one action. Lyle v. Keehn, 195 Ga. 508, 24 S.E.2d 655 (1943).
When there is no semblance of a conspiracy among the different defendants, and no common intent or act, this section affords no support for a multifarious petition. Crutcher v. Crawford Land Co., 220 Ga. 298, 138 S.E.2d 580 (1964).
It is not necessary or requisite that all of the issues in the cases to be consolidated are identical; they need only be substantially the same. O'Malley v. Wilson, 182 Ga. 97, 185 S.E. 109 (1936).
Neither party offers timely objection, the order of the court constitutes a final consolidation, and not a temporary consolidation "for the trial." O'Malley v. Wilson, 182 Ga. 97, 185 S.E. 109 (1936).
If neither party in the cases to be consolidated offers timely objections to the consolidation, it must be assumed that the litigants consented thereto, and they are bound thereby. O'Malley v. Wilson, 182 Ga. 97, 185 S.E. 109 (1936).
This section does not include unnecessary and even improper parties. Laken v. Sunbrand Supply Co., 214 Ga. 804, 108 S.E.2d 323 (1959).
Equity will do complete justice.
- Equity, taking jurisdiction, will determine all of the matters in controversy and grant appropriate relief, equitable or legal, so as to do complete justice between the parties. City of Atlanta v. Aycock, 205 Ga. 441, 53 S.E.2d 744 (1949).
Cited in Jefferson Banking Co. v. Trustees of Martin Inst., 146 Ga. 383, 91 S.E. 463 (1917); McHenry v. McHenry, 152 Ga. 105, 108 S.E. 522 (1921); Hines v. Wilson, 164 Ga. 888, 139 S.E. 802 (1927); Jones v. Nisbet, 165 Ga. 826, 142 S.E. 164 (1928); O'Leary v. Costello, 169 Ga. 754, 151 S.E. 487 (1930); Burgess v. Ohio Nat'l Life Ins. Co., 177 Ga. 48, 169 S.E. 364 (1933); Lightner v. Belk, 178 Ga. 766, 174 S.E. 349 (1934); Swann v. Wright, 180 Ga. 323, 179 S.E. 86 (1935); Tanner v. Wilson, 183 Ga. App. 53, 187 S.E. 625 (1936); Cheatham v. Gormley, 85 Ga. App. 295, 190 S.E. 38 (1937); Ferrell v. Wight, 187 Ga. 360, 200 S.E. 271 (1938); Benton v. Turk, 188 Ga. 710, 4 S.E.2d 580 (1939); Kimsey v. Mickel, 191 Ga. 158, 12 S.E.2d 567 (1940); Roberts v. McBrayer, 194 Ga. 606, 22 S.E.2d 165 (1942); Arnold v. West Lumber Co., 198 Ga. 207, 31 S.E.2d 410 (1944); Harris v. Rowe, 200 Ga. 265, 36 S.E.2d 787 (1946); Godfrey v. City of Cochran, 208 Ga. 149, 65 S.E.2d 605 (1951); Salter v. Salter, 209 Ga. 90, 70 S.E.2d 453 (1952); Graves v. Wall, 210 Ga. 271, 79 S.E.2d 529 (1954); Worley v. Gaston, 210 Ga. 350, 80 S.E.2d 304 (1954); Kirchman v. Kirchman, 212 Ga. 488, 93 S.E.2d 685 (1956); Chambliss v. Kindred, 214 Ga. 712, 107 S.E.2d 205 (1959); Dawson v. Altamaha Land Co., 215 Ga. 700, 113 S.E.2d 129 (1960); Ayers v. Baker, 216 Ga. 132, 114 S.E.2d 847 (1960); Golfland, Inc. v. Thomas, 107 Ga. App. 563, 130 S.E.2d 757 (1963); Georgia Money Corp. v. Rissman, 220 Ga. 476, 139 S.E.2d 486 (1964); Logan v. Logan, 221 Ga. 769, 147 S.E.2d 326 (1966); McElmurray v. Richmond County, 223 Ga. 47, 153 S.E.2d 427 (1967); Roberts v. Roberts, 226 Ga. 203, 173 S.E.2d 675 (1970); State Farm Mut. Auto. Ins. Co. v. Hillhouse, 131 Ga. App. 524, 206 S.E.2d 627 (1974); Pugh v. Pou, 238 Ga. 450, 233 S.E.2d 198 (1977).
Proper Parties
All who have participated in an actionable wrongful act or procured it to be done are proper parties to litigation seeking relief therefrom. Hardin v. Homeyer, 213 Ga. 321, 99 S.E.2d 136 (1957).
All persons who are directly or consequentially interested in the event of the suit are properly made parties to a petition in equity, so as to prevent a multiplicity of suits by or against parties at once or successively affected by the original case. Hermann v. Mobley, 172 Ga. 380, 158 S.E. 38 (1931); Benton v. Turk, 188 Ga. 710, 4 S.E.2d 580 (1939); Hyde v. Atlanta Woolen Mills Corp., 204 Ga. 450, 50 S.E.2d 52 (1948).
Where a principal and his surety join in the execution of a bond for faithful discharge of duty by the principal in relation to funds about to be delivered to him as next friend for a minor, and the principal receives the fund, but thereafter conveys his realty to his wife for the purpose, known to the wife, of avoiding payment to the minor, and after breach of his bond judgment is obtained against his estate, and where the surety subsequently conveys his separate realty to his daughter with intent, known to the daughter, to avoid payment to the minor, in a suit against the surety, the widow of the principal and the daughter of the surety, to recover judgment for the amount due under the bond and to subject the properties conveyed by the principal and his surety respectively to payment of the judgments, the widow and daughter are proper parties defendant, and the petition is not subject to demurrer (now motion to dismiss) by the latter on the ground of multifariousness or of misjoinder of parties. Robertson v. Cox, 183 Ga. 744, 189 S.E. 844 (1937).
It is not required that in order to be a proper party one must be interested in all the matters and issues involved in the suit. Hermann v. Mobley, 172 Ga. 380, 158 S.E. 38 (1931); Benton v. Turk, 188 Ga. 710, 4 S.E.2d 580 (1939); Evans v. Luce, 190 Ga. 403, 9 S.E.2d 646 (1940).
There is no misjoinder of parties or of causes of action, even if the petition concerns things of a different nature against several defendants whose rights are distinct, if it sets forth one connected interest among them all, centering in the point in issue in the case. Hermann v. Mobley, 172 Ga. 380, 158 S.E. 38 (1931); City of Atlanta v. Aycock, 205 Ga. 441, 53 S.E.2d 744 (1949).
An equitable petition is not multifarious because all of the defendants are not interested in all of the matters contained in the suit; it is sufficient if each party has an interest in some matter in the suit which is common to all, and that they are connected with the others. Dobbs v. FDIC, 187 Ga. 569, 1 S.E.2d 672 (1939); Hyde v. Atlanta Woolen Mills Corp., 204 Ga. 450, 50 S.E.2d 52 (1948).
Common right as to partnership.
- When there is a common right, such as the right of partners to the partnership property, equity will take jurisdiction in order to avoid separate suits by or against each partner. Fowler v. Stansell, 221 Ga. 630, 146 S.E.2d 726 (1966).
For a party seeking to obtain possession of a disputed tract of land to join a third party assenting a superior claim to possession, it is not necessary that the interest of the parties be identical; the test is the common interest in the subject matter of the litigation, the property of which the plaintiff seeks to be put in possession, and the common interest of each of the defendants is to defeat that effort of the plaintiff and have possession for himself. Voyles v. Federal Land Bank, 182 Ga. 569, 186 S.E. 405 (1936).
When petition asserted as to all defendants that the property conveyed to them by the principal defendant was without any legal consideration and purchased with funds stolen from the petitioner, the issue as to that question was common to all of the defendants, and the petition was not subject to the grounds of special demurrer (now motion to dismiss) as to misjoinder of parties and causes of action and multifariousness. Hyde v. Atlanta Woolen Mills Corp., 204 Ga. 450, 50 S.E.2d 52 (1948).
When the plaintiffs have a common interest against all of the defendants in a suit as to one or more of the questions raised by it, so as to make them all necessary parties for the purpose of enforcing that common interest, the circumstance of some of the defendants being subject to distinct liabilities in respect to different branches of the subject matter, will not render the bill multifarious. Myers v. Grant, 212 Ga. 677, 95 S.E.2d 9 (1956).
Application to members of unincorporated association.
- Under this rule, a few of the members of an unincorporated association, such as a trade union, may sue in the name or in behalf of all the members, where all by virtue of their membership have a common right or interest in the contract or other subject matter of the suit. The fact that the individual interests of the plaintiffs may in some respects differ, or that all do not have an interest in all the matters embraced in such an equitable suit, will not, as to individual plaintiffs, render the petition multifarious or subject to attack for misjoinder of parties or causes of action, if each of the plaintiffs has an essential interest common to all, with a common connection and right against the defendant. O'Jay Spread Co. v. Hicks, 185 Ga. 507, 195 S.E. 564 (1938).
Dismissal based on multifariousness.
- A suit in equity, based on separate and distinct claims against different persons, where there is no common right to be established, will be dismissed on demurrer (now motion to dismiss) on the ground of multifariousness. McCowan v. Snook, 175 Ga. 430, 165 S.E. 84 (1932).
No right of consolidation.
- Where no common right or interest is shown, the alleged insolvency of the defendant in the petition for consolidation will not confer a right of consolidation in the plaintiffs. Walker Elec. Co. v. Walton, 201 Ga. 591, 40 S.E.2d 523 (1946).
The fact that the individual interests of the plaintiffs may in some respects differ, or that all do not have an interest in all the matters embraced in such an equitable suit, will not, as to individual plaintiffs, render the petition multifarious or subject to attack for misjoinder of parties or causes of action, if each of the plaintiffs has an essential interest common to all, with a common connection and right against the defendant. City of Atlanta v. Aycock, 205 Ga. 441, 53 S.E.2d 744 (1949).
Holding stocks does not necessarily create common interest.
- The fact that two defendants are large stockholders in a company seeking to consolidate their cases 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 suits against the corporation. Walker Elec. Co. v. Walton, 201 Ga. 591, 40 S.E.2d 523 (1946).
Petition seeking cancellation of a security deed and injunction against a sale under power contained therein, alleging that the debt which the deed was given to secure had been paid, brought by the administratrix of the estate of the grantor in the deed, a holder of a lien junior to the security deed, the owner of a one-half undivided interest in the lands therein conveyed, of whose interest the defendant grantee had notice at the time the deed was executed, was sufficient to set forth a cause of action for the relief prayed for as against a general demurrer (now subject to motion to dismiss), and was not demurrable (now motion to dismiss) on the ground of multifariousness, or of misjoinder of parties plaintiff, or that the interests of the plaintiffs were antagonistic and divergent as all the plaintiffs had an interest in the realty, and a common interest in seeking to enjoin a sale thereof and cancellation of the deed thereto. Perry v. Gormley, 183 Ga. 757, 189 S.E. 850 (1937).
Proceedings based on void Acts of General Assembly.
- There is no misjoinder of causes of action or of parties plaintiff, and the petition is not multifarious, where the property rights of all the petitioners are affected by the defendants' attempt to condemn the plaintiff's property and by the acts of the defendants, who are alleged to be proceeding under a void Act of the General Assembly, and an unconstitutional, illegal, and void ordinance enacted by the defendant city pursuant to the powers purported to be conferred by the Act. City of Atlanta v. Aycock, 205 Ga. 441, 53 S.E.2d 744 (1949).
Joinder of city and railroad company.
- In view of the interest and general authority of a city to protect its streets and keep them free of obstructions, where separate acts of the railroad company and of the city have the effect to destroy an existing street as a continuous way, the railroad company and the city can be joined in one action for mandamus to compel each to remove the obstructions made by it. Such an action does not show a joinder of separate and distinct claims against different parties. Atlantic Coast Line R.R. v. Donalsonville Grain & Elevator Co., 184 Ga. 291, 191 S.E. 87 (1937).
Order of court consolidating suit by heirs at law, and suit by creditors, was not erroneous merely because of differences in the parties and in the relief sought, there being at least one matter common to both suits, in which all of the parties to each suit asserted interest, and a common relation of all contentions to the same estate. Benton v. Turk, 188 Ga. 710, 4 S.E.2d 580 (1939).
Jurisdiction Generally
Equitable jurisdiction requires common issue.
- Before equity will assume jurisdiction to enjoin the bringing of multiple suits, the same issue must be involved in each of the suits. Reed v. V.H. Kriegshaber & Son, 171 Ga. 352, 155 S.E. 469 (1930).
Pleading and Practice
General test, in determining whether cases can be consolidated or whether an equity suit will lie to enjoin an action at law and try its issues in the equity suit, is whether the two suits could have been joined in one petition; and this depends on whether a misjoinder or multifariousness would result. Sanders v. Wilson, 193 Ga. 393, 18 S.E.2d 765 (1942).
A petition is multifarious when it embraces two or more claims by separate and distinct parties against separate and distinct parties, and where there is no common right to be established. Saliba v. Saliba, 202 Ga. 279, 42 S.E.2d 748 (1947); Burgin Lumber Co. v. Kirksey, 203 Ga. 439, 47 S.E.2d 68 (1948).
Where a petition should have been dismissed in the lower court for improper joinder and for multifariousness, the appellate court will not rule upon the merits of the several claims set forth in the petition, because it would be possible for a plaintiff to include in one action a multitude of disconnected claims against as many separate persons, and thus procure a decision upon the merits of each, and in effect avoid the rule against joining in one action separate claims against separate persons. Burgin Lumber Co. v. Kirksey, 203 Ga. 439, 47 S.E.2d 68 (1948).
Equity not controlling if misjoinder or multifariousness results.
- Even though under this section equity might reach out and bring in as parties persons not already joined, it will not do so if a misjoinder or multifariousness would result. Such would be the result if separate claims with different issues would have to be determined. Sanders v. Wilson, 193 Ga. 393, 18 S.E.2d 765 (1942).
When strict application of rules against multifariousness required.
- Where there are two actions at law, brought by separate plaintiffs, to recover damages ex delicto, in which neither party has a joint interest with the other, and a person who is a defendant in both actions at law seeks to convert one of them into an equitable suit on the sole ground of avoiding multiplicity, the rules against multifariousness are more strictly applied to deny the joinder. Sanders v. Wilson, 193 Ga. 393, 18 S.E.2d 765 (1942).
Issuance of an order of consolidation is a matter within the sound legal discretion of the judge, and the exercise of this discretion will not be disturbed, unless manifestly abused. O'Malley v. Wilson, 182 Ga. 97, 185 S.E. 109 (1936).
RESEARCH REFERENCES
Am. Jur. 2d.
- 27 Am. Jur. 2d, Equity, §§ 46 et seq., 248. 59 Am. Jur. 2d, Parties, §§ 3, 96.
C.J.S.- 1 C.J.S., Actions, § 107 et seq. 30 C.J.S., Equity, § 68. 31 C.J.S., Equity, § 133 et seq. 67A C.J.S., Parties, § 4.
ALR.
- Joinder of parties or causes of action in suits under the Federal Employers' Liability Act, 13 A.L.R. 159.
Right to enjoin enforcement of illegal tax, local assessment, or license fee, upon joinder of several affected thereby, 32 A.L.R. 1266; 156 A.L.R. 319.
Power of equity to enjoin prosecution of independent actions at law by different persons injured by the same tort, 75 A.L.R. 1444.
Remaindermen as necessary or proper parties to action or proceeding between life tenant and trustee, 136 A.L.R. 696.
Joinder or representation of several claimants in action against carrier or utility to recover overcharge, 1 A.L.R.2d 160.
Appealability of state court order granting or denying consolidation, severance, or separate trials, 77 A.L.R.3d 1082.