
    Taylor v. The Standard Brick Company and The Akron Hydraulic Press Brick Company et al.
    
      Consolidation of actions — To avoid multiplicity of suits — Court may demand single action of several parties, when — Several actions against same defendant — Defendant may ask for consolidation of suits and for in ¡unction- — Order for such consolidation not a final order — 'ilefusal of temporary injunction, not prejudicial error, when--Court procedure.
    
    1. Under the Ohio code of civil procedure, as formerly in chancery, to avoid multiplicity of actions, the court may require that the rights of all parties interested in a transaction, or subject-matter, shall be determined in a single action; and in doing so the identity of parties is not considered, but rather a community of interest in the subject-matter of the litigation.
    2. Where several actions for the recovery of money are pending against the same defendant and he answers in all of them setting up equitable defenses and praying for equitable relief, and after the issues are all made up in these cases, the' defendant files his petition in the same court making defendants thereto all of the plaintiffs in said actions and all other persons whom he has reason to believe claim any interest in the subject matter of the controversy, and praying for the same relief as in his answers in such actions, and in case of recovery for marshalling of liens and other relief, and for a temporary injunction restraining the trial of said pending actions until the final hearing of his petition, it is not error to refuse the injunction and order that his actions for equitable relief shall be consolidated with the actions pending against him; nor is such order for consolidation a final order.
    
      3. In such, case the refusal to grant a temporary injunction as prayed is not prejudicial error, because the order consolidating all the cases practically effects the purpose sought to be accomplished by the injunction.
    (Decided June 10, 1902.)
    Error to the Circuit Court of Cuyahoga county.
    This case was heard by one division of the Supreme Court.
    The defendant in error, The Standard Brick Company, filed a petition against the plaintiff in error in the court of common pleas of Cuyahoga county to recover upon a bond which the plaintiff in error had signed as surety for one Joseph Soss, who had contracted to construct a building and pay all claims for labor and material, the bond containing a clause that the same should be for the use and benefit of any laborer or material man, the same as for the owner of the building. Afterwards the Akron Hydraulic Press Brick Company commenced a similar action against the plaintiff in error and a number of other suits were also begun against him on this bond. The plaintiff in error answered in those cases, setting up as a first defense a general denial, and alleging mistake in the execution of the bond in that the clause for the benefit of the laborers and material men was inserted by the scrivener by mistake and alleging fraud and misrepresentation in obtaining the bond. Some time after the issues had been made up in these suits the plaintiff in error commenced his action in the same court against the Standard Brick Company and all the plaintiffs in these various suits on the bond, and making defendant also all persons whom he had reason to believe had claims against him on account of the bond, and setting up in his petition the same allegations of mistake in the execution of the bond and fraud and misrepresentation in obtaining it. He also alleges the pendency of these actions, that they are being pressed for trial and prays as follows: “Wherefore plaintiff invokes hereby the equitable jurisdiction of this court in the premises, and prays that a temporary injunction may be granted against said defendant, The Standard Brick Company, to enjoin and prevent the trial of said cause now pending upon the calendar, and ordering and requiring said defendant and the Akron Hydraulic Press Brick Company, The Portage Entry Quarries Company, The Malone Stone Company and Heintel & Kohl to dismiss their several pending actions at law against the plaintiff, and come into this cause where equitable jurisdiction may be had. That all of said defendants may be ordered to come into this cause and set out their several claims or be foréver barred from commencing or maintaining any action against plaintiff. That each and all of the defendants herein may be enjoined from further prosecution of any actions brought by them and from commencing any action against this plaintiff upon said bond until the final determination of this action,” etc. After the ‘filing of this petition plaintiff filed a motion for a temporary injunction pending said action, and during the hearing of that motion, on the suggestion of the court, counsel for the Standard Brick Company, defendant, filed a motion to consolidate the action with the action of the Hydraulic Press Brick Company against the plaintiff in error. And thereupon the court overruled the plaintiff’s motion for an injunction and ordered these actions consolidated with the case of the Hydraulic Press Brick Company, and this was assigned for error in the circuit court which affirmed the judgment of the common pleas, and that order and judgment is now complained of in this 'court.
    
      
      Mr. J. W. Taylor and Mr. T. H. Garry, for plaintiff in error, cited and commented upon the following authorities:
    Section 6707, Rev. Stat.; People v. Railway Co., 29 N. Y., 418p; Tidd’s Prac., 4th Am. ed., 614; 4 Ency. Pl. & Prac., 677; Sec. 5120, Rev. Stat.; Burkhardt v. Burkhardt, 36 Ohio St., 261; Goslin v. Campbell, 7 Re., 456; 3 Bull., 369; Sec. 817, Code of Civil Pro.; Mayor v. Coffin, 90 N. Y., 312; Grocery Co. v. Flint, 5 N. Y. App. Div. Sup. Court, 263; Wooster v. Case, 12 N. Y. Supp., 769 (34 N. Y., 577) ; Sec. 5707, Sandel & Hill’s Digest; Meehan v. Watson, 65 Ark., 216; Smith v. Smith, 22 Colo., 480; Ortman v. Railway Co., 32 Kan., 419; Code of Iowa, Sec., 2734; Harwick v. Weddington, 73 Ia., 300; Bank v. Ingerson, 105 Ia., 349; Sec. 2792, Revised Statutes of Wisconsin; Winninghoff v. Wittig, 64 Wis., 180; Livermore v. Bainbridge, 56 N. Y., 72; Bank v. Commonwealth Nat. Bank, 2 Hun, 287; Brown v. Kuhn, 40 Ohio St., 468; Story’s Eq. Jur. (13 ed.), Secs. 875, 885, 901, 904; Beach Modern Eq. Jur., Sec. 647; High on Injunctions, Sec. 63; Becker v. Church, 115 N. Y., 562 (Penn. v. Ingles, 82 Va., 65) ; Zeigler v. Beasley, 44 Ga., 56; Railroad Co., v. Mayor, 54 N. Y., 159; Railway Co. v. Ramsey, 45 N. Y., 637; Burke v. Railway Co., 45 Ohio St., 631; Railway Co. v. Hamilton, 2 Circ. Dec., 259; 3 C. C. R., 455; Watson v. Sullivan, 5 Ohio St., 43; Turpin v. Coates, 12 Neb., 321; Secs. 5071, 5074 and 5009, Rev. Stat.; Wilkins v. Bank, 31 Ohio St., 565; Railroad Co. v. Sloan, 31 Ohio St., 1.
    
      Messrs. Solders, Hogsett & Tilden and Messrs. Henderson & Quail, for defendants in error, cited and commented upon the following authorities:
    
      Missionary Society v. Ely, 56 Ohio St., 405; Watson v. Sullivan, 5 Ohio St., 43; Railroad Co. v. Sloan, 
      31 Ohio St., 1; Railroad Co. v. Duckworth, 1 C. D., 618; 2 C. C. R., 518; Burke v. Railway Co., 45 Ohio St., 631; Burkhardt v. Burkhardt, 36 Ohio St., 261; Sec. 5120, Rev. Stat.; Massie v. Stradford, 17 Ohio St., 596; Buckner v. Mear, 26 Ohio St., 514; Sheeful v. Murty, 30 Ohio St., 50.
   Davis, J.

The plaintiff in error complains that there was error in the judgment of the circuit court affirming the judgment of the common pleas in making the order of consolidation, and in refusing a temporary injunction, on motion, as prayed for in his petition.

I. It is a familiar principle of equity practice, which we conceive is not abrogated by the code, that in order to avoid multiplicity of actions the court may require the determination of the rights of all parties interested in a transaction or subject-matter, in a single action, wherever the purpose of justice may seem to demand it; and in doing so the identity of parties is not considered, but rather a community of interest in the subject-matter in litigation. Pomeroy Eq. Jur. (2nd ed.), Secs. 268, 269; 4 Enc. Pl. and Prac. 690, 692; 2 Daniel’s Ch. Prac. (6th ed.), 1120, note a. The authors of our code, who used the New York code of civil procedure as a model, seem to have deliberately rejected the provision in the latter code that “where two or more actions in favor of the same plaintiff against the same defendant, for causes of action which may be joined, are pending in the same court, the court may, in its discretion, by order, consolidate any or all of them into one action.” Our statute, Revised Statutes, Sec. 5120, is mandatory that on motion of a defendant the several actions shall be consolidated, if it appear that the actions, not causes of action, could have been joined and ought to be joined. The power of consolidation is not limited to identity of parties and to causes of action which might be joined in the same petition under the rules of pleading; but it seems to have been purposely broadened so as to authorize the consolidation of all actions which might be joined, either at law or in equity, for. convenience of trial, for preventing multiplicity of actions or for the purpose of saving costs. This plaintiff in error was defendant in a number of actions upon his bond, and in all of them he answered, as one defensé, that the scrivener had made a mistake in drafting the bond, and as another defense, that the bond was obtained by fraud and misrepresentation. Some time after the issues were made up in these cases, the plaintiff in error filed his petition in this case, making as defendants thereto all of the plaintiffs in these actions on the bond, as well as all other persons whom he had reason to believe, asserted claims against him on the bond. He sets forth in his petition the same allegations of mistake and fraud which he had made in his answers. He invokes the equitable jurisdiction of the court in the premises, prays that a temporary injunction may be granted against the Standard Brick Company to prevent the trial of its cause against him, and requiring the Standard Brick Company, the Akron Hydraulic Press Brick Company, and others, to dismiss their several actions at law, pending against the plaintiff, and to come into this cause where equitable jurisdiction may be had, etc. Thus the plaintiff himself sought to bring all the pending actions, and all the parties concerned, into one action ; and he cannot be allowed to complain when the defendants, by a motion to consolidate, concur with him. We find no error in the order of consolidation; and even if it were erroneous, it is not reviewabl 3 now,.because it did not determine any of the actions or prevent a judgment therein. Section 6707, Rev. Stat.

It is suggested in argument by plaintiff in error that the order of consolidation made no provision as the pleadings that have been filed, and that the order of proceeding in the trial of the consolidated action may prejudice the plaintiff in error. We see no difficulty in this. The issues are not changed by the consolidation. The equity questions raised by the plaintiff in error in his petition and cross-petitions below will be first disposed of, and next the other issues, if they remain after the determination of the equity issues. Massie v. Stradford, 17 Ohio St., 596; Dodsworth v. Hopple, 33 Ohio St., 16; and see also, Reiff v. Mulholland, 65 Ohio St., 178.

II. It is also maintained by the plaintiff in error that the order refusing a temporary injunction was an order adversely affecting his substantial rights, that it is an order made in a special proceeding, and that it is therefore a final order which may be reviewed on error, and which ought to be reversed. For the purposes of this case it may be conceded that the order refusing the injunction is a final order; for it seems to be clear that it is not prejudicial to the plaintiff in error, and therefore it does not authorize a reversal, even if it were technically erroneous. It appears from the plaintiff’s petition that the purpose which was sought to be accomplished by the temporary injunction, was to stay the trial of the several pending actions until this action had been heard and determined. The consolidation of all of these actions with this one, effectuated this purpose, because judgments on the bond cannot be rendered against the plaintiff in error until the equitable issues are determined.

The judgment of the circuit court is therefore

Affirmed.

Burket, Shauck and Price, JJ., concur.  