Rule 42. Consolidation: Separate trials

Consolidation: Separate trials.

(a) Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

(b) Separate trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by Article 1, Section 11 of the Alabama Constitution of 1901.

(dc) District court rule. Rule 42 applies in the district courts and the provisions for consolidation and separate trials provided therein should be applied liberally in recognition of the unavailability of jury trials in the district courts. [Amended 5-16-83, eff. 7-1-83.]

Committee Notes

Committee Comments on 1973 Adoption Rule 42(a) A.R.C.P. is identical to Rule 42(a) F.R.C.P. Rule 42(b) A.R.C.P. differs only in the elimination of reference to jury trial rights under the Seventh Amendment to the U.S. Constitution. The general statute on consolidation Tit. 7, § 259, Code of Ala. preserved the restrictive common law limitations that actions to be consolidated must be pending, perfect and complete at the same time, they must be between the plaintiff and the same defendant, and must be such as might have been joined in the same complaint. The statute, and the common law before it, left little scope for consolidation and did not facilitate the administration of justice. It is superseded by Rule 42(a). The rule is similar to the special consolidation statute for Jefferson County, Tit. 7, § 221, Code of Ala. which has been given a sympathetic construction by the Supreme Court. Ex parte Ashton, 231 Ala. 497, 165 So. 773 (1936); Ex parte Miller, 273 Ala. 453, 142 So.2d 910 (1962). Rule 42(a) speaks both of joint hearings or trials and of consolidation. This wording is intended to confer a broad discretion to merge the two actions so far as is necessary for their most convenient determination, and to permit merger of some or all of the issues in the two cases. But where there is complete consolidation, the actions retain their separate identity and the parties and pleadings in one action do not automatically become parties and pleadings in the other action. Oikarinen v. Alexian Bros., 342 F.2d 155 (3d Cir.1965). National Nut Co. of California v. Susu Nut Co., 61 F.Supp. 86 (N.D.Ill.1944); Simon v. Carroll, 241 Minn. 211, 62 N.W.2d 822 (1954). The test for consolidation under the special statute for Jefferson County is whether the causes are “of like nature or relative to the same question.” This language was copied from the predecessor to Rule 42(a) F.R.C.P. Its vagueness was responsible for a narrow construction on occasion. This ambiguity is now rejected i