Opinion
29692.
DECIDED NOVEMBER 18, 1942.
Complaint; from Fulton civil court — Judge Hathcock. April 14, 1942.
Neely, Marshall Greene, W. Neal Baird, for plaintiffs.
Fraser Irwin, for defendant.
Where two common-law actions, in favor of different plaintiffs against the same defendant, and in which the plaintiffs separately filed exceptions pendente lite to the overruling of demurrers to the defendant's answer, were by an order of court consolidated and tried together before the same jury, and a separate verdict and judgment were rendered in favor of the plaintiff in each case, and a separate motion for new trial was filed and granted to the defendant in each case, this court is without jurisdiction to entertain a single bill of exceptions sued out jointly by the plaintiffs to review the judgments overruling the demurrers and granting the defendant a new trial in each case. Accordingly, the writ of error will be dismissed.
DECIDED NOVEMBER 18, 1942.
Dr. Hunter Causey, a physician of Pine Bluff, Arkansas, and Ralph Robinson Son, a firm of morticians of the same city, filled separate suits in the civil court of Fulton County against William E. Waters, the first being for medical services rendered the defendant's wife and the latter being, for funeral services. The defendant filed an answer to each suit. Each plaintiff filed separate demurrers to the defendant's answer and filed separate exceptions pendente lite to the judgments overruling said demurrers. The two cases were then consolidated by order of the court and were tried together, and the jury returned separate verdicts for the respective plaintiffs and judgments were entered accordingly. Motions for new trials were filed by the defendant and a new trial was granted him in each case. The plaintiffs filed one bill of exceptions to this court, assigning error on the judgments overruling the demurrers and the judgments granting the defendant new trials.
In these circumstances and under the rulings of the Supreme Court in numerous cases the writ of error must be dismissed. In Brown v. L. N. R. Co., 117 Ga. 222 ( 43 S.E. 498), it was ruled: "1. An order passed, upon an agreement between counsel, that two suits, each based solely upon a common law cause of action, in favor of different plaintiffs against the same defendants, `be consolidated and tried together,' does not have the effect to merge the two cases into one, but the effect of such order is to provide simply that the suits be consolidated only to the extent of being tried together. Erwin v. Ennis, 104 Ga. 861 [31 S.E. 444]; Wells v. Coker Banking Co., 113 Ga. 857 [39 S.E. 298]; Purvis v. Ferst, 114 Ga. 689 [40 S.E. 723]. 2. When under such an agreement, the two cases are tried together upon demurrers filed in each by the defendants, and a separate judgment sustaining the demurrer in each case has been entered up, the plaintiffs have a right to except separately to such judgments. Where, however, the plaintiffs bring but a single bill of exceptions to this court and seek thereby to review both the judgments, the writ of error must be dismissed; for this court has no jurisdiction. Walker v. Conn, 112 Ga. 314 [37 S.E. 403], and cases cited; Wells v. Coker Bkg. Co., Purvis v. Ferst, supra. See also Bates v. Harris, 112 Ga. 34 [37 S.E. 105]." To the same effect see Futch v. Mathis, 148 Ga. 558 ( 97 S.E. 516); Beck Jones v. Chenoweth-Holder Lumber Co., 170 Ga. 367 ( 152 S.E. 899). In Bates v. Harris, 112 Ga. 32, 34 (supra), it was said: "It is often both proper and expedient to consolidate two distinct cases for the purpose of disposing of them by one trial. When this is done, any party to either who is dissatisfied with the result may take whatever steps are appropriate to a review of the verdict or judgment of which he complains. That is to say, after the trial each case then resumes its independent standing."
While no motion is made to dismiss the bill of exceptions, the question involved is jurisdictional, and this court is without any authority to entertain the bill of exceptions.
Writ of error dismissed. Stephens, P. J., and Felton, J., concur.