In February 1945 the Southeastern Construction Company, a partnership composed of J.T. Williams and B.F. Williams, brought an action against James A. Gregory and W.J. Runyon, partners under the firm name of Mid-South Paving Company, and Trinidad Asphalt Manufacturing Company, a corporation.
In February 1947 an action pending in the Chancery Court was removed to the Circuit Court of Hinds County, the court below, and the declaration there filed recited that:
"The plaintiff, Mrs. Starlight B. Williams, is the sole survivor of the partnership of J.T. Williams Company, which was formerly composed of J.T. Williams and Mrs. Starlight B. Williams and, as sole heir of J.T. Williams deceased, the said plaintiff, Mrs. Starlight B. Williams became and is the owner of all the assets of the said J.T. Williams Company.
"The defendants herein are Mid-South Paving Company, a partnership composed of James A. Gregory, James A. Gregory, Jr., and Clay Gregory, who are residents of the State of Arkansas, and W.J. Runyon, a resident citizen of Jackson, Mississippi, and Trinidad *Page 461 Asphalt Manufacturing Company, a Missouri Corporation domiciled at St. Louis, Missouri, and licensed to do business in the State of Mississippi."
The first of these actions was Number 11549 on the docket of the court below and the number of the second was 11906 and they will be so referred to hereafter.
The relief sought in 11549 was a recovery of rent on one galion 8-12 ton variable weight tandem roller (a road-making machine) under a contract with the plaintiffs for the rental thereof.
The relief sought in 11906 was recovery of rent on several pieces of road machinery under a contract with the plaintiffs for the rental thereof.
After pleas had been filed to each of these declarations, the following motion was made in Case No. 11549 by B.F. Williams, one of the plaintiffs therein:
"Comes plaintiff, B.F. Williams, one of the partners operating the firm of Southeastern Construction Company, plaintiffs herein, and suggest to the court that since the filing of said suit, J.T. Williams, the remaining partner, has died and that his sole heir at law is his widow, Mrs. Starlight B. Williams, resident of Elba, Alabama.
"Plaintiff, by attorneys, therefore moves the Court that this suit may be revived in the name of Mrs. Starlight B. Williams, surviving partner, in place and stead of J.T. Williams, deceased, and that the cause proceed in the name of Southeastern Construction Company, a partnership composed of Mrs. Starlight B. Williams and B.F. Williams."
The record discloses no order on this motion, but thereafter the following order was made under the names and numbers of the two cases:
"This cause this day coming on to be heard on motion ore tenus to consolidate the above styled and numbered causes on the docket of this court, and all parties agreeing thereto, it is now therefore so ordered and adjudged by the Court that the above styled and numbered causes *Page 462 be and they are hereby consolidated for trial, as in such cases provided by law." (Italics supplied.)
The case then proceeded to trial, resulting in a judgment under the names and numbers of both cases, reciting that:
"The said cause having been submitted to the said jury on the pleadings, evidence submitted, instructions from the Court and arguments of counsel, and the jury having retired to consider their verdict, presently returned into open court their verdict, as follows:
"`We, the jury, find for the defendants that under the evidence in this case the plaintiff is not entitled to recover any rent for the 8 to 12 ton tandem roller.
"`We, the jury, find for the plaintiff in the amount of $496.79 freight.
"`We, the jury, find for the defendant in the matter of the steam generator.
"`We, the jury, find for the plaintiff in the amount of $150 for the repair of the diesel unit.
"`We, the jury, find for the plaintiff in the amount of $75.00 for the fuel pump.'
"Wherefore, it is hereby ordered and adjudged that the plaintiff, Southeastern Construction Company, take nothing by its Suit No. 11549 against the defendants, as above set out, and the same is dismissed with prejudice at the cost of plaintiffs.
"That the plaintiff, Mrs. Starlight B. Williams, in said Cause No. 11906, above styled, do have and recover from the defendants James A. Gregory, James A. Gregory, Jr., Clay Gregory and W.J. Runyon and Mid-south Paving Company, a partnership composed of the parties just named, and Trinidad Asphalt Manufacturing Company, a Missouri Corporation domiciled at St. Louis, Missouri, and licensed to do business in the state of Mississippi, jointly and severally for the total sum of $721.79, together with all costs of this suit, for which execution issue."
The record also discloses another judgment in Cause No. 11549 setting forth the following jury verdict: "We, *Page 463 the jury, find for the defendants in this separate case for the item of rent on the 10 to 12 ton tandem roller," and adjudging "that the plaintiff J.T. Williams and B.F. Williams, trading as Southeastern Construction Company and Mrs. Starlight B. Williams do have and recover nothing of and from the defendants, James A. Gregory and W.J. Runyon, trading as Mid-South Paving Company, and Trinidad Asphalt Manufacturing Company for rent sued for on the 10-12 ton tandem roller," etc.
A bond for an appeal to this Court was thereafter filed in Case No. 11906 by "James A. Gregory and W.J. Runyon, trading as Mid-South Paving Company," payable to Mrs. Starlight B. Williams reciting that: "The condition of the foregoing obligation is that at the regular May, 1947 term, a judgment was entered on the Circuit Court of the First Judicial District of Hinds County, Mississippi, in favor of Mrs. Starlight B. Williams, as plaintiff, against James A. Gregory and W.J. Runyon, trading as Mid-South Paving Company, as defendants, in the sum of seven hundred twenty-one dollars ($721) and costs; and said defendants, feeling aggrieved thereby, have prayed and obtained an appeal from said judgement with supersedeas to the Supreme Court of the State of Mississippi."
On January 19, 1948, Gregory and Runyon, trading as Mid-South Paving Company filed an assignment of errors in this Court, together with a brief thereon. On January 31, 1948, Mrs. Starlight B. Williams filed a cross-assignment of errors complaining of the denial of the court below of a recovery by her on the tandem roller item involved in Case No. 11549.
Counsel for Gregory and Runyon filed a motion to dismiss this cross assignment of errors, and also to strike from the record the evidence therein relating only to Cause No. 11549, the tandem roller item.
These two cases are not between the same parties, the facts in each and the subject matters thereof are different, and assuming, but merely for the purpose of the argument, *Page 464 that the Court could have so consolidated them on an agreement of counsel so to do as to cause them to be combined and merged into one so as to lose their separate identity, the order of consolidation did not so provide for it expressly recites "that they are hereby consolidated for trial." The record discloses also that the cases were carried through the trial by, and judgments rendered therein were under, their separate docket numbers. The appeal bond herein was filed only by the losing parties in Cause No. 11906, and no bond was filed by any of the parties in Cause No. 11549, consequently this latter case is not before us, and the appellants' cross assignment of errors which challenge only rulings made in that case must be dismissed.
The motion to strike from the record the evidence therein relating only to Cause No. 11549 must be overruled for the reason that it seems to be inextricably intermixed with the evidence relating to Cause No. 11906, and counsel have not pointed out to us how it can be so separated that the clerk of the court below could have safely omitted that relating only to Cause No. 11549 from this record.
So ordered.