Ex parte Montgomery
| Decision Date | 07 March 1946 |
| Docket Number | 6 Div. 421. |
| Parties | Ex parte MONTGOMERY. |
| Court | Alabama Supreme Court |
Chas W. Greer, of Birmingham, for petitioner.
John C. Morrow, of Birmingham, for respondent.
Circuit Court 18-D of the Tenth Judicial Circuit is, in part, as follows:
'Factors to be considered in ruling on motion to consolidate cases to be tried by juries. * * *
'2(f) In the application of factor No. 2 a matter to be considered is whether or not a consolidation will bring into a similar position two or more parties one of whom, in human nature would make a strong appeal or an unusually sympathetic appeal to a jury, and the other of whom would not. In this situation, as a general proposition but subject to exception for good reason, it will be regarded as inappropriate to consolidate the actions against the objection of a party who is adverse to those who would be brought into similar position by a consolidation. * * *
This is an original petition in this court seeking mandamus to the Honorable John C. Morrow, as Judge of the Circuit Court of Jefferson County, Alabama, to require him as such Judge to set aside an order overruling petitioner's motion to consolidate Case No. 10148-X (William W. Montgomery v. Par Value Loan Company et al.) with Case No. 11332-X (William W. Montgomery v. Abe Berkowitz); and to require him to enter an order granting said motion to consolidate said cases.
Rule nisi having been issued by this court, the respondent Morrow has filed demurrers to the petition and has also answered. The answer of respondent has not been controverted by petitioner, therefore it will be taken as true. Ex parte State ex rel. Brittain et al., 237 Ala. 164, 186 So. 148; Ex parte Davis, 230 Ala. 668, 162 So. 306; Ex parte Beard et al., 246 Ala. 338, 20 So.2d 721. While it is not improper for petitioner in mandamus proceedings to interpose demurrers to answer of respondent, it is not necessary under our practice inasmuch as the sufficiency of an answer in such proceedings will be considered by this court without further pleading. If the answer is sufficient, the writ will be denied; if insufficient, peremptory writ will be granted. Longshore Judge v. State ex rel. Turner, 137 Ala. 636, 34 So. 684; Helms v. Alabama Pension Commission, 26 Ala.App. 460, 163 So. 805.
Montgomery petitioner here, is plaintiff in both of the cases sought to be consolidated. Both suits involve the same garnishment which he alleges was wrongfully, maliciously and without probable cause issued out of the Intermediate Civil Court of Birmingham. Petitioner first brought suit against Par Value Loan Company (Case No. 10148-X) charging it with the responsibility of having the garnishment run. Par Value Loan Company, in answer to petitioner's interrogatory, stated that it did not issue the garnishment but that, according to its information, an attorney whom it had employed to collect a debt owed by petitioner had made affidavit and caused the garnishment to be run. Thereupon, Montgomery (petitioner) filed suit against Abe Berkowitz, an attorney at law (Case No. 11332-X), charging him with the responsibility of having caused the garnishment to be issued. Berkowitz, in reply to petitioner's interrogatory asking whether he was authorized by the Par Value Loan Company to make the affidavit for garnishment, stated: 'I had not been specifically instructed by the Par Value Loan Company to make affidavit for garnishment in this particular case but the authority to do so and the implicit instruction therefor was based upon my general representation of this firm and particularly with respect to its collections, it being understood by them that, after obtaining judgments against their debtors, I was to run garnishments upon the...
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