The general test, in determining whether cases can be consolidated or whether an equity suit will lie to enjoin an action at law and try its issues in the equity suit, is whether the two suits could have been joined originally; and this depends on whether a misjoinder or multifariousness would result. There was lacking the essential community of interest between the parties plaintiff, as well as the required identity with respect to any controlling issue as made by the defenses, in the two cases sought in effect to be consolidated. Consequently the exceptions taken to the order enjoining the law action and combining its issues with those made in the equity case must be sustained.
This case differs from that of Kidd v. Finch, 188 Ga. 492 (4 S.E.2d 187). There all the parties concerned were before the court which effected the consolidation, and there was involved but one single issue of fact and one claim, with its corresponding counterclaim *Page 396 identical in character. Here the husband of the driver of the automobile, who was its owner, was not made a party defendant in Mrs. Wilson's suit, and his claim for damages to his automobile is different in character, and must be determined on issues other and independent from those raised by Mrs. Wilson in her suit. The provision of the Code, § 3-112, authorizing the consolidation of suits between the same parties involving the same pleas, arising under the same contract, and on which the same verdict may be rendered, has been held applicable to "suits other than those arising ex contractu," but, in order for this to be done, "the issues must be the same." Ga. R. c. Co. v. Gardner, 118 Ga. 723,725 (45 S.E. 600); City of Dalton v. Elk Cotton Mills,146 Ga. 89, 90 (90 S.E. 718). Here, contrary to what was disclosed in the Kidd case, the plaintiff in the case sought to be consolidated, as has been stated, was not made a party by Mrs. Wilson in her suit; and while the same collision is involved, the nature and character of the claims are different, and the issues involved are far from being the same. It might be that Mrs. Wilson, had she seen proper, could have joined the automobile owner as a party defendant, but she did not see proper so to do; and she can not be thus compelled. Wall v. Wall,176 Ga. 757 (168 S.E. 893); Mashburn v. Dannenberg, 117 Ga. 567 (13, 14), 582 (44 S.E. 97); Miller v. Straus, 38 Ga. App. 781,782 (145 S.E. 501), and cit. Under the rules stated, she could not legally have joined him as a coplaintiff, because the claims are different in character; and even if she had made him a party defendant, it would not seem that the truck owner could avail himself of such a procedure on her part, in order to try out a different issue made by another suit, in which she was in no wise concerned, seeking to enforce a claim different in character. This is Mrs. Wilson's lawsuit. Its determination would not control the issues involved in the other cases, or vice versa. It is true that equity seeks to avoid a multiplicity of suits; and "where there is one common right to be established by or against several, and one is asserting the right against many, or many against one, equity will determine the whole matter in one action." Code, § 37-1007. But even though under this rule equity might reach out and bring in as parties persons not already joined (Code, § 37-1005; Otis v. Graham Paper Co.,188 Ga. 778, 782, 4 S.E.2d 824), it will not do so if a misjoinder or multifariousness would *Page 397 result. Such would be the result if separate claims with different issues would have to be determined.
Where an equity suit is based on some independent ground of equitable jurisdiction, other than or additional to the ground of avoiding a multiplicity of suits, the rules as to the required community of interest of the plaintiffs, and as to the making of new parties to settle all matters in controversy with respect to such independent ground, are more liberally administered than where the suit or a cross-action is based solely on the ground of avoiding multiplicity. But even where an independent equity is involved, claims of plaintiffs, in order to be properly united, must involve the same or similar facts, must be governed by the same legal rule or rules, and present a common defense with a single question or questions in common controlling both cases. Where, however, as in this case, there are two actions at law, brought by separate plaintiffs, to recover damages ex delicto, in which neither party has a joint interest with the other, and a person who is a defendant in both actions at law seeks to convert one of them into an equitable suit on the sole ground of avoiding multiplicity, the rules against multifariousness are more strictly applied. Payne v. West Point Wholesale Grocery Co., supra, and cit.; Roanoke Guano Co. v. Saunders, 173 Ala. 347 (56 So. 198, 35 L.R.A. (N.S.) 491, 493-496, with note); Turnerv. Mobile, 135 Ala. 73 (33 So. 132); Tribette v. Illinois C. R. Co., 70 Miss. 182 (12 So. 32, 19 L.R.A. 660, 35 Am. St. R. 642, note and cit.); 20 L.R.A. (N.S.) 848-853.
On a review of the decisions and texts, the Indiana court in Vandalia Coal Co. v. Lawson, 43 Ind. App. 226 (87 N.E. 47,55), with language pertinent to this case, has said: "Many of the later [decisions] show that the number in which equity will assume jurisdiction is increasing; but in allowing this condensation of litigation, courts must look well to the facts and see that a consolidation will not confuse the issues, will not bring so many questions or varied interests into a case that they can not be as well decided as if the cases were tried separately, will not work a practical denial of . . trial by jury. Every man has the right to try his case with its issues clear and well defined. If a consolidation can be had without interfering with this right, it should be granted in a proper case; if it can not be so had, it should be denied."
In the instant case, no saving would be effected, and nothing *Page 398 except confusion would result from attempting, merely to avoid a multiplicity of actions, to join diverse claims controlled by different issues. Such a joinder would not really amount to a consolidation of the two cases in one trial, but would in effect amount to the trial of two cases at one and the same time.
Judgment reversed. All the Justices concur.