(dissenting).
I am of the opinion that the Court of Appeal, Fourth Circuit, has correctly disposed of the issue presented. See 229 So. 2d 455. I have difficulty in understanding the reasoning of the majority, which leads to a contrary result.
Apparently the majority assumes alternative and conflicting positions to reach the result desired. The majority first assumes the position in support of its conclusion that there was no consolidation, and that defendants’ attempt to effectuate consolidation bars the operation of Louisiana Code of Civil Procedure Article 561, which provides that failure to take any step in the prosecution of a suit during five years acts automatically as an abandonment of the suit.
The majority states that there was a motion and order for consolidation of the present suit, referred to as Suit One, with another suit, referred to as Suit Two, and for transfer to another division of the court. The majority then asserts that the *401defendants “secured this consolidation and transfer which had the effect of staying all proceedings in the present suit”. (Emphasis mine.) This is error. Consolidation does not have the effect of staying proceedings; to the contrary, consolidation, if perfected, would mandate all suits consolidated to proceed simultaneously. C.C.P. Art. 1561. Consolidation is not a delaying tactic, nor does a consolidation order relieve a plaintiff of going forward with his suit.
The majority errs in holding that Suit One became dormant by reason of an attempt by the defendants to consolidate it with Suit Two. Admittedly Suit Two is now finally adjudicated after many years of litigation, and yet plaintiff’s contention, in opposition to defendants’ motion to dismiss Suit One as abandoned, is that Suit One is pending and active. Apparently the litigants are in agreement that Suit One was not actually consolidated and tried with Suit Two. If there was no consolidation, the Court of Appeal’s judgment and opinion must stand as legally correct, for no steps were taken in prosecution or defense of Suit One for five years and it was therefore abandoned. It was plaintiff’s obligation to take affirmative steps in his suit to keep it alive. Activities in a separate suit cannot avail plaintiff as a step in the prose cution of Suit One.
The majority then, apparently taking an alternative and contradictory position, states that “ * * * if indeed the suits were consolidated for trial as the order shows, * * * ” actions in Suit Two were actions in Suit One as well. I am unable to find in our record any basis foi a determination that there was an actúa' consolidation of Suits One and Two for the purpose of trial except the order of transfer to another division for consolidation. Saving this lone motion and order, there is total absence of act or intent to consolidate. There are only two alternative conclusions which can be made in regard to the status of Suit One from 1956 to 1962: Either the days of this period accumulated toward abandonment of Suit One, or the suit was actually being tried for the purpose of adjudication with Suit Two during that period. There is no stay order in the proceedings, and as previously noted, consolidation has the opposite effect to staying proceedings. To conclude that inactivity and activity existed simultaneously in this suit is not only illogical but wholly untenable.
I am firmly convinced there was no consolidation of the two suits. However, I must answer this contradictory position of the majority. I conclude that either plaintiff’s rights under Suit One were adjudicated by the court’s failure to render a judgment in the consolidated suits, which acted as a dismissal, or that plaintiff should-have presented timely a judgment for sign*403ing to the court of consolidation which would have disposed of the issues in Suit One oh the basis of the consolidated record. If the suits were consolidated, it appears to me the matter is finally at rest, after approximately 15 years, by the appellate decision in the consolidated suit, 169 So.2d 122, and the writ refusals by this court, 247 La. 343, 170 So.2d 865, and 247 La. 346, 170 So.2d 866.
It may be that the court is reaching for equity; but it is not equity to breathe new life into a suit which remained in a state of total inactivity for over five years and which is now approximately 15 years old. The application of the positive law of suit abandonment here is not based upon a mere technical omission, but it is mandated under sound substantive legal theory.
The majority fails to establish anywhere in the entirety of its opinion one single affirmative step by the plaintiff between 1956 and 1962 tending toward the prosecution and the protection of the legal life of this action. I find neither factual nor legal basis for interrupting the running of the prescriptive period. I reiterate that the Court of Appeal has correctly found that the plaintiff’s failure to take an affirmative step in the prosecution of this suit for five years constitutes abandonment.
I respectfully dissent.