#### CARL C. DURHAM v. T. HOLT LAIRD and Wife, MARGUERITE GOODE LAIRD. CARL C. DURHAM v. T. HOLT LAIRD and Wife, MARGUERITE GOODE LAIRD.

Docket No. 14406.

Docket No. 14407.

(Filed 21 May, 1930.)

1. Actions C a: Appeal and Error J lb — Refusal to consolidate actions as matter in.discretion will be affirmed in absence of abuse.

Where two actions between the same parties upon the same subject-matter are brought, one to recover damages for personal injuries caused by the alleged negligence of the defendant, and the other to recover damages to property resulting from the same act, the refusal of the trial court to consolidate the two actions as a matter in his legal discretion will be affirmed on appeal, there being nothing of record to indicate an abuse of the discretion.

2. Appeal and Error E h — Question as to whether second of two actions could be maintained not presented on record in this case.

Where two actions are brought for the recovery of damages between the same parties relating to the same negligent act, one as to personal *696injury and tlie other as to property damage, and no motion to dismiss is made in the latter, as to it the question as to whether the action would lie is not presented on appeal.

Civil actioN, before *McFlroy, J.,*at February Term, 1930, of Guil-roed!

On 11 November, 1929, tbe plaintiff instituted two civil actions against tbe defendants. Tbe summonses in botb actions were served on 16 November, 1929. Tbe first suit is designated as Docket No. 14406, and tbe second suit is designated as Docket No. 14407.

Complaint was filed in No. 14406, alleging tbat on 8 May, 1929, tbe plaintiff was injured in an automobile collision due to tbe negligence and carelessness of defendants and resulting in serious and permanent injuries, for wbicb plaintiff demanded damages in tbe sum of $10,000.

In No. 14407 tbe plaintiff alleged tbat bis automobile was greatly damaged in an automobile collision occurring on 8 May, 1929, and due to tbe negligence and carelessness of defendants, for wbicb plaintiff demanded judgment in tbe sum of $2,000.

Tbe defendants filed an answer in No. 14406 denying negligence, pleading contributory negligence and alleging a counterclaim for damages sustained by tbe defendants due to tbe negligence of plaintiff. Tbe defendants also specifically pleaded tbe pendency of No. 14407 in bar of recovery.

In case No. 14407, wbicb may be designated as tbe case for recovery of property damage, tbe defendant also answered denying negligence, pleading contributory negligence, alleging counterclaim, and also pleaded tbe pendency of case No. 14406 as a bar to recovery.

Tbe plaintiff filed replies to tbe answers alleging in substance tbat in tbe suit for property damage, to wit, No. 14407, “a portion of wbicb damage tbe insurance company of North America became subrogated by reason of tbe payment of collision damages, and of necessity tbis action for said personal property damage was brought in tbe name of tbe plaintiff, and tbe plaintiff denies tbat tbe pendency of such action is a bar to tbis action.”

Tbe plaintiff made a motion, after due notice, to consolidate tbe two actions. After bearing tbe motion tbe trial judge entered tbe following order: “It is thereupon considered, ordered and adjudged by tbe court in its discretion tbat tbe said motion to consolidate be, and the same is hereby denied.”

From tbe foregoing judgment tbe plaintiff appealed.

*D. Newton Famell, Jr., and Frazier & Frazier for plaintiff.*

*B. M. Bobmson for defendants.*

*697BbogdeN, J.

The sole question of law presented by this appeal is whether the trial judge had the power in his discretion to refuse to consolidate the actions.

The cause discloses substantially the following fact setting: A plaintiff brings two suits on the same day, against the same defendants for damages growing out of an automobile collision. In one suit the plaintiff seeks to recover damages for personal injury, and in the other suit compensation for property damage growing out of said collision. The defendants, among other things, plead the pendency of each suit as a bar to the other, and the plaintiff replies that in the suit for property dam-áge the Insurance Company of North America is subrogated to a portion of such damage.

In determining the legal aspect of consolidation the general rule is that the trial judge has the power to consolidate actions involving the same parties and the same subject-matter if no prejudice or harmful complications will result therefrom. This salutary power is vested in the judge in order to avoid multiplicity of suits, unnecessary costs and delays, and as a protection against oppression and abuse. *Blount v. Sawyer,*189 N. C., 210, 126 S. E., 512; *Fleming v. Holleman,*190 N. C., 449, 130 S. E., 171; *Rosenmann v. Belk-Williams Co.,*191 N. C., 493, 132 S. E., 282.

Whether the order of consolidation is entirely discretionary and not reviewable on appeal is an open question in this jurisdiction. *Wilder v. Greene,*172 N. C., 94, 89 S. E., 1062. The whole subject is discussed with singular clearness and accuracy in McIntosh on North Carolina Practice and Procedure, pp. 536-539, where all the pertinent authorities in this State are assembled. However, if two consecutive actions are brought, involving the same parties and the same subject-matter, and the second action cannot be maintained, then in such event, consolidation is not proper. *Mfg. Co. v. Tirney,*130 N. C., 612, 41 S. E., 871.

On the present state of the record we are not concerned with the question as to whether the action for property damage would lie because there is no motion to dismiss, upon the principle announced in *Underwood v. Dooley,*197 N. C., 100. The trial judge based his refusal to consolidate the actions upon his discretion, and we cannot say, as a matter of law, from an inspection of the record, that such order constituted an abuse of discretion — particularly in view of the well established principle that there is a presumption in favor of the validity of a judgment. And, therefore, we are constrained to affirm the decree of the trial court.

Affirmed.