Walker Elec. Co. v. Walton

• Decision Date: 05 September 1946
• Docket Number: 15509.
• Citation: 40 S.E.2d 523,201 Ga. 591
• Parties: WALKER ELECTRICAL CO. et al. v. WALTON.
• Court: Georgia Supreme Court

40 S.E.2d 523

201 Ga. 591

WALKER ELECTRICAL CO. et al. v. WALTON.

No. 15509.

Supreme Court of Georgia

September 5, 1946

Rehearing Denied Oct. 11, 1946.

Second Motion for Rehearing Denied Nov. 15, 1946.

Syllabus by the Court.

Where a common right or interest is not shown in all of the plaintiffs in one or more of the actions sought to be consolidated, it is not error to dismiss on general demurrer the petition for consolidation.

Walker Electrical Company, a corporation, C. P. Owens, and H. L Blum, filed an equitable petition, against H. G. Walton, in the superior court of Fulton County to consolidate five cases filed by Walton. As shown by copies attached to the petition. Walton had filed three separate suits against Walker Electrical Company in the civil court of Fulton County, and a separate suit against C. P. Owens, and a separate suit against H. L. Blum, each in the superior court of Fulton County. From the exhibits (copies of the five suits) it appears that in the first case filed by Walton against Walker Electrical Company he was seeking a recovery for an alleged breach of a written contract (copy of which was attached as an exhibit) in the sum of $2,479.03. The second of the three suits was a trover action to recover certain personal property; and the third suit was to recover $2,180.10 alleged to be due Walton by the defendant, Walker Electrical Company, for repairs on a building of the defendant. In the suit by Walton against Owens in the superior court, a recovery was sought of $4,512.04, for alleged repairs to the house of Owens, under employment by Owens. The action of Walton against Blum sought a recovery, for repairs on the latter's house, of $9,191.42, under an alleged contract with Blum.

In the petition to consolidate it is contended: That the five cases should be consolidated in order that a full accounting might be had between the parties and a multiplicity of suits avoided. That Walton by reason of certain defective work, as shown by an itemized exhibit, is indebted to Walker Electrical Company in the sum of $15,632. That Owens and Blum and one other person are the sole stockholders of Walker Electrical Company; that the corporation, through an arrangement of its stockholders among themselves contracted with Walton for the repairs on the residences of Owens and Blum; and that Walton at no time had any contract or agreement with either Owens or Blum. That by reason of defective work on the part of Walton on the individual jobs, a large part of the work had to be done over and expense incurred, as shown by exhibits attached, in the amount of $6,377 on the Blum job, and $2,458 on the Owens job. The corporate plaintiff has counterclaims against Walton far in excess of the jurisdiction of the civil court of Fulton County. Other matters of overpayment, duplication of payment, counterclaims and set-off are alleged. That all matters in dispute in the five suits grow out of a series of transactions between the corporate plaintiff and Walton, and all controversies grow out of a series of interwoven transactions. It is alleged that Walton is insolvent. The prayers are for process: that temporary injunction issue restraining the defendant from prosecuting the three cases pending in the civil court of Fulton County; that the five cases be consolidated and referred to an auditor; and that the plaintiffs have judgment that they, nor neither of them, are indebted to the defendant.

The defendant filed a general demurrer, which was sustained. The exception is to that judgment.

Powell, Goldstein, Frazer & Murphy, of Atlanta, for plaintiffs in error.

Herbert Johnson and Calhoun & Calhoun, all of Atlanta, for defendant in error.

HEAD, Justice (after stating the foregoing facts.)

'Where there is one common right to be established by or against several, and one is asserting the right against many, or many against one, equity will determine the whole matter in one action.' Code, § 37-1007. This section was taken from the decision of this court in Smith v. Dobbins, 87 Ga. 303, 316, 13 S.E. 496, where the almost identical language of the section was quoted by this court from 1 High on Injunctions, § 12. Section 37-1007 has been construed by this court in numerous decisions. One of the earlier cases, frequently cited, is White v. North Georgia Electric Co., 128 Ga. 539, 58 S.E. 33, where it was stated: 'A petition which embraces two claims by separate and distinct parties against separate and distinct parties, where there is no common right to be established, is multifarious.' It was further held in White v. North Georgia Electric Co., supra, 128 Ga. at page 542, 58 S.E. at page 34: 'If there is a common right and the court of equity takes jurisdiction, there is no limit to which the court will go in order to do complete justice, but, where there is no common right, equity will not, for any purpose, entertain a suit wherein separate and distinct parties with separate and distinct claims unite against one or more parties. The statutes simply...