Opinion
No. 4433.
Argued June 5, 1956.
Decided July 6, 1956.
The Superior Court, where justice requires, may order the consolidation of actions for trial as well as other convenient procedure which will protect the rights of the parties involved.
Where no prejudice resulted from the denial of defendants' motion for an extension of time within which to file a proposed reserved case or bill of exceptions until the hearing had been transcribed the exception was overruled.
ASSUMPSIT, by A. W. and Fletcher B. Perkins against Exeter Associates, Inc. to recover balance due for labor performed and materials furnished.
CASE, by William H. Sleeper against A. W. and Fletcher B. Perkins for their failure to pay as agreed for certain lumber cut on his land.
On March 18, 1952, A. W. and Fletcher B. Perkins entered into a written agreement with Exeter Associates, Inc. executed by "Wm. H. Sleeper, Mgr." to construct for it three houses at Rye. Construction was to start on or before April 1, 1952 and two of the houses were to be completed on or before July 15 next. Associates was to pay $1000 "on account when the rough lumber and other materials has been supplied on the job and the work has gone on for two weeks and payments thereafter on account will follow every two weeks to the amount of $500. . . ."
On May 26, 1952, William H. Sleeper executed a quitclaim deed to Arthur W. and Fletcher B. Perkins of "all the sawable lumber . . . situate on my two farms . . . in Deerfield, at the price of $12.00 per M . . . the scale shall be made each week and from week to week until all is completed, and payment shall be credited to payments due on contract dated March 18, 1952, until the same is paid in full and then payment shall be made each week to William H. Sleeper."
The Perkins as defendants in the action in case moved that justice and convenience required that both actions be consolidated and tried at the same time as the same issues would arise therein due to the agreement that all payments made for cutting the lumber deeded were to be credited to the construction contract. After hearing the Court (Grimes, J.) ordered that the actions be consolidated for trial subject to the exceptions of Sleeper and Exeter Associates.
Upon reconsideration and after further hearing the Court vacated the above order and substituted the following: "William H. Sleeper made a party in the action of A. W. Perkins and Fletcher Perkins against Exeter Associates for the purpose of being bound by any finding that may be made with respect to the amount of timber cut on the lot of William H. Sleeper which appears to be a matter in dispute in both actions."
Exeter Associates and Sleeper excepted to that order and the Court set a date within which a proposed reserved case or bill of exceptions was to be filed following which Sleeper requested an extension of time until after a transcript of the hearings had been filed. The request was denied subject to exception.
All exceptions of Exeter Associates, Inc. and of William H. Sleeper were reserved and transferred.
Burns, Calderwood Bryant and Robert E. Hinchey (Mr. Hinchey orally), for A. W. and Fletcher B. Perkins.
Sleeper Mullavey (Mr. Sleeper orally), for Exeter Associates, Inc. and William H. Sleeper.
It is well established in our state that the Superior Court may order a consolidation of suits or some other convenient procedure which will protect the rights of the parties involved. Meloon v. Read, 73 N.H. 153; Allbee v. Elms, 93 N.H. 202, 204; Lynch v. Bissell, 99 N.H. 473, 474. The test is what on the whole justice requires. Tinkham v. Railroad, 77 N.H. 111. In the absence of a showing of an abuse of discretion the decision of the Trial Court will be sustained. Sweeney v. Willette, 98 N.H. 512, 513; Bowers, Judicial Discretion of Trial Courts, 161.
The Court in its modification order stated that "the amount of timber cut on the lot of William H. Sleeper . . . appears to be a matter in dispute in both actions." That conclusion is supported by the record and justifies the procedure adopted by the Court to protect the rights of all parties involved.
We have examined the record before us. It consists of documents on file in Superior Court, arguments of counsel relative thereto, and orders of the Court thereon. We find nothing in this record to indicate prejudice to. Exeter Associates, Inc. or to William H. Sleeper in the denial of their motion that the time within which to file a proposed reserved case or bill of exceptions be extended until the hearings had been transcribed. Superior Court Rule 57, 99 N.H. 617.
Exceptions overruled.
All concurred.