Harris v. Sweetland
| Decision Date | 12 April 1882 |
| Citation | 11 N.W. 830,48 Mich. 110 |
| Court | Michigan Supreme Court |
| Parties | HARRIS v. SWEETLAND. |
Where parties having cross-actions against each other, involving different issues, some of them inconsistent, consented to consolidate the actions, and try them as one suit, all testimony admissible in either action to be received upon the trial, held, that the court would not review the proceedings upon writ of error.
Error to Kalamazoo.
H.C. Briggs, for plaintiff in error.
O.T Tuthill, for defendant in error.
October 11, 1877, Sweetland sued Harris by summons and 20 days later Harris retorted by suing Sweetland by attachment.
December 15, 1877, Sweetland proceeded to declare in assumpsit. His declaration contained three special counts and the usual indebitatus counts. The latter were not used. By the special counts damages were claimed for alleged breaches on the part of Harris of a written agreement made between the parties on the twenty-seventh of November, 1876, whereby Harris was to sell to Sweetland certain lumber at Clam Lake and ship it on orders and Sweetland was to pay therefor through acceptances pursuant to the terms specified.
January 31, 1878, Harris pleaded the general issue with notice of special matter and of set-off, and on the same day he declared in the attachment cause and claimed damages for alleged breaches by Sweetland of the same agreement set up in the other case. He also claimed to recover on numerous unpaid acceptances taken under that agreement.
March 12, 1878, Sweetland pleaded the general issue with notice of special matter and of set-off. Both suits being at issue the parties stipulated as follows: "It is hereby stipulated between the respective parties in the above causes that they be consolidated upon the trial in one cause, and that Mr Harris have permission to put in evidence upon this trial and upon this consolidation of the two cases all that would be proper evidence as defendant in this suit No. 9 () and as plaintiff in the other No. 10, (being that commenced by himself,) and that the other side, Mr. Sweetland, have leave to put in evidence all that would be proper as plaintiff in this suit and as defendant in the other." Under this agreement a single jury was drawn for both suits and the parties proceeded before it to litigate in one trial all the issues and subjects of contention involved in the respective actions, and at the close the jury returned and the court received and recorded a single verdict finding in favor of Sweetland for $634. Being dissatisfied with this result Harris took a writ of error and by way of return to it we find the records in both actions down to the stipulation, the proceedings at the trial set forth in the bill of exceptions and the single verdict and judgment.
Where a true consolidation has been effected the writ of error will apply to bring up the separate matters which preceded the union. But it is not to be assumed that it would regularly operate in a case not within any law permitting consolidation.
But waiving this question there are other considerations which demand attention. The practice of consolidating cases was established at common law. Tidd, 664; Graham, 418; 1 Burrell, 411. And the state of New York and several others have confirmed it by statute. Such has been the case here. Sections 5806-5807, Comp.Laws. But neither the common law nor any statute has ever authorized the consolidation of cross-actions, or given the least countenance to the notion that parties by stipulation might require the same jury to hear in one case and decide by one verdict a series of issues wholly incompatible and incapable of being tried together except through violation of the fundamental principles of procedure. Baley v. Raby, Strange, 420; Swithin v. Vincent, 2 Wils. 227; Cecil v. Briggs, 2 T.R. 639; Camman v. New York Ins. Co. 1 Caines, 114; Thomson v. Shepherd, 9 Johns. 262; Dunning v. Bank of Auburn, 19 Wend. 23; Wilkenson v. Johnson, 4 Hill, 46; Witherlee v. Ocean Ins. Co. 24 Pick. 67.
The statute gives a discretion to the court to consolidate where several suits are pending in the same court by the same plaintiff against the same defendant for causes of action which may be joined, and also where several actions are commenced against the same joint and several debtors in the same court. But it neither authorizes nor favors a consolidation in such a case as this. If anything it indicates the contrary.
Harris charged Sweetland with having broken the agreement and he further charged him with having failed to pay his acceptance given under the agreement and these were his causes of action against...
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