Puckett v. Cook

• Decision Date: 18 July 1978
• Docket Number: No. 51850,51850
• Citation: 1978 OK 108,586 P.2d 721
• Parties: Douglas A. PUCKETT, Petitioner, v. The Honorable David M. COOK, Respondent.
• Court: Oklahoma Supreme Court

Page 721

586 P.2d 721

Douglas A. PUCKETT, Petitioner, v. The Honorable David M. COOK, Respondent.

No. 51850.

Supreme Court of Oklahoma.

July 18, 1978.

Rehearing Denied Nov. 6, 1978.

ORIGINAL JURISDICTION ASSUMED; WRIT OF PROHIBITION DENIED.

Stipe, Gossett, Stipe & Harper, Oklahoma City, for petitioner.

Kenneth N. McKinney, McKinney, Stringer & Webster, Oklahoma City, for respondent.

BERRY, Justice:

Douglas A. Puckett, petitioner, is plaintiff in an action pending in district court. Respondent judge issued an order consolidating petitioner's district court action with another action. Petitioner asks this Court to assume original jurisdiction and prohibit trial judge from carrying his order into force.

Petitioner and his wife and other persons were passengers on a bus belonging to Oklahoma Transportation Company. Allegedly, the bus was involved in an accident.

Petitioner filed his damage action against the company in Oklahoma County district court on April 11, 1977, under No. CJ-77-1129. At some unknown time petitioner's wife filed her action for damages, arising out of the same transaction, against same defendant, under No. CJ-77-1208 in Oklahoma County district court.

Trial court defendant moved to consolidate the two cases. On November 10, 1977, respondent judge issued an order consolidating the two cases under No. CJ-77-1129, over objection of both petitioner and the other plaintiff.

The order consolidating the cases sets out certain findings: the cases ought to be consolidated; 12 O.S.1971 § 559, constitutes an unconstitutional infringement upon the inherent power of the judiciary to "run its own docket" and, therefore, 12 O.S.1971 § 79 controls consolidation in this cause; the parties (i. e. parties plaintiff in each case) are husband and wife, represented by the same attorney, and both plead injuries evolving out of the same transaction. The court also found no cause had been shown why the cases should not be consolidated. Respondent judge thereupon assumed jurisdiction of the consolidated cause.

The only additional facts necessary to our consideration are that petitioner and his wife are both represented by the same counsel and expect to call the same medical witnesses. Further there are several, perhaps eight, other cases pending in Oklahoma County between other passengers, severally, and the same defendant company.

Petitioner argues several propositions. Restated, petitioner argues 12 O.S.1971 § 559, is constitutional and that trial court abused its discretion in consolidating petitioner's case with petitioner's wife's case.

12 O.S.1971 § 559, provides:

"Separate cases shall not be consolidated for trial by one jury, unless it is agreeable by all parties in each and every case; nor shall more than one case be tried by any one jury, unless it is agreeable by all parties in each and every case."

The Constitution of Oklahoma, Article IV § 1, provides powers of government in this State shall be divided into three separate departments, legislative, executive and judicial. We have interpreted the provision to forbid one department of government from encroaching upon powers and duties of either of the other departments. In Jones v. Freeman, 193 Okl. 554, 146 P.2d 564, concerning reapportionment of the Oklahoma legislature, we said that it was beyond our power to decree a certain scheme of legislative reapportionment although it was within our power to pass upon constitutionality of a reapportionment statute enacted by the legislature. We said we were prohibited from reapportioning the legislature both because the duty was reserved to the legislature (Art. V §§ 9 and 10 (now repealed), Constitution of Oklahoma) and because the duty was, by nature, a legislative one.

We hold enactment of 12 O.S.1971 § 559, constitutes an encroachment by the legislature upon a power or duty of the judiciary. The statute exercises ultimate control of disposition of a certain class of suits before the judiciary.

The statute conflicts with constitutional grant of unlimited original jurisdiction to district courts in justiciable matters (save those reserved to an enumerated court, not an applicable limitation here). See Art. VII § 7, Constitution of Oklahoma.

Jurisdiction includes power to hear and decide a justiciable controversy. See Twine v. Carey, 2 Okl. 249, 37 P. 1096. We hold power to "hear" a case includes power to make, and enforce, reasonable rules for orderly procedure before courts.

12 O.S.1971 § 559, attempts to direct courts in a matter of procedure and, if followed, to supersede court's discretion to consolidate any jury cases in certain circumstances. Where the legislature acts with regard to a matter over which courts have ultimate authority, and acts in a way to deprive courts of that authority, the legislative act is an unconstitutional abridgement of the principle of separation of powers. See In re Bledsoe, 186 Okl. 264, 97 P.2d 556. We hold 12 O.S.1971 § 559, is an unconstitutional abridgement of Art. IV § 1, Constitution of Oklahoma.

12 O.S.1971 § 79, received into our statutes from statutes of Kansas prior to statehood, permits consolidation of cases in exercise of sound judicial discretion. Metropolitan Life Ins. Co. v. Richter, 182 Okl. 446, 78 P.2d 307, Three cases reported seriatim.

Difference between the two statutes is that § 559 compels the court (to deny consolidation in certain cases) while § 79 merely permits the court (to grant consolidation in certain cases). There is nothing inherently improper in a statute which defines procedure, so long as the statute does not seek to supplant exercise of sound judicial discretion.

Petitioner's second contention is the consolidation of petitioner's case with another in the trial court was a breach of judicial discretion.

In cases where abuse of discretion is raised we will review the discretionary act and, if an abuse is involved, correct the abuse. St. Louis-San Francisco Ry. Co. v. Superior Court, Okl., 290 P.2d 118.

As we have mentioned, petitioner and his wife, plaintiff in the other of the two consolidated cases, had the same counsel. The two cases involved a common defendant, arose out of the same transaction, and therefore have common questions of fact as to liability of defendant to plaintiffs. The point is made that both plaintiffs have a common medical witness.

In view of these facts we cannot agree with petitioner's contention that consolidation was based on the marital status of the two plaintiffs.

Petitioner argues consolidation will reduce the likelihood of a fair and impartial jury trial of both cases. He bases the argument on two premises. First, he says the damage issues will be unduly complicated, rendering a just verdict unlikely. Second, petitioner claims potential prejudice of jurors may affect the rights of one or the other of the plaintiffs. Petitioner claims that counsel may be placed in the untenable position of having to accept a juror...