Butler v. Secrist

• Decision Date: 13 April 1909
• Docket Number: 15,362
• Citation: 120 N.W. 1109,84 Neb. 85
• Parties: MARY BUTLER, APPELLANT, v. MARY E. SECRIST ET AL., APPELLEES
• Court: Nebraska Supreme Court

120 N.W. 1109

84 Neb. 85

MARY BUTLER, APPELLANT, v. MARY E. SECRIST ET AL., APPELLEES

No. 15,362

Supreme Court of Nebraska

April 13, 1909

APPEAL from the district court for Knox county: JOHN F. BOYD, JUDGE. Reversed.

REVERSED.

M. F. Harrington and W. R. Butler, for appellant.

J. F. Greene and W. A. Meserve, contra.

OPINION

ROSE, J.

This is a suit in equity to redeem 80 acres of land in Knox county from the lien of a mortgage. The real estate in controversy is part of the 800-acre tract involved in the foreclosure proceedings described in Butler v. Smith, ante, p. 78. The issues and facts are substantially the same in both cases, except that the defendants are different and claim title to separate parts of the original tract. From a decree dismissing her action plaintiff appeals.

Plaintiff brought a separate suit in ejectment for each piece of land. Afterwards by amendment of her petition she changed the actions to suits to redeem. In the amended form the purpose of the litigation was to redeem two separate pieces of land in possession of different defendants from the lien of a single mortgage. In this condition of the controversy plaintiff moved the court to consolidate the actions. The motion was overruled, and the ruling is assigned as error. Section 150 of the code permits the consolidation of actions on motion of the defendant, but makes no reference to such procedure on behalf of the plaintiff, who is the party having the right to choose the form of action, name the defendants, and amend the petition, or dismiss the suit and pursue a different remedy. A court of equity, however, in absence of statute, has inherent power in regulating its procedure to unite suits for trial, and, where such practice is not authorized by statute, an order allowing or denying consolidation should not be reversed on appeal, except for a palpable abuse of discretion. 8 Cyc. 592, 593. The records in the present cases do not show such an abuse of discretion as to require a reversal on that ground, but, for the errors pointed out in the opinion in the preceding case, the judgment below in this case is reversed and the cause remanded for further proceedings.

REVERSED.