Taylor v. Standard Brick Co.

• Decision Date: 10 June 1902
• Citation: 64 N.E. 428,66 Ohio St. 360
• Parties: TAYLOR v. STANDARD BRICK CO. et al.
• Court: Ohio Supreme Court

64 N.E. 428

66 Ohio St. 360

TAYLOR v. STANDARD BRICK CO. et al.

Supreme Court of Ohio.

June 10, 1902

Error to circuit court, Cuyahoga county.

Action by one Taylor against the Standard Brick Company and others. From an order denying an injunction and consolidating several actions, plaintiff brings error. Affirmed.

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 defendants, 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 &amp 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 forever barred from commencing or maintaing 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 are now complained of in this court.

Syllabus by the Court

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 marshaling 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...