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Rule 174. 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 may order a separate trial of any claim, cross-claim, counterclaim, or thirdparty claim, or of any separate issue or of any number of claims, cross-claims, counter claims, third-party claims, or issues.

Source: Federal Rule 42, unchanged.

Note: Supersedes Art. 2160.

Oct. 29, 1940, eff. Sept. 1, 1941.


(No. 32) Question: Does Rule 174 authorize the trial court to require a trial of a specified plea in bar or issue (to the exclusion of the other pleas or issues in the case), and then render judgment solely an the issue tried if that issue is found to be decisive of the case?

Answer: Yes. Rule 174 expressly provides that "The Court ... may order a separate trial of any claim, cross-claim ... or of any separate issue.... "

There are instances where certain pleas in bar (such as res adjudicata or release) can be established quickly and with very little evidence; and where it is likely that the decision of such a plea is going to be decisive of the entire case the Rule gives the trial judge the discretionary power to order said issue to be tried first or separately, so as to avoid a long trial on other issues that will probably became immaterial because of the controlling effect of the decisive plea.

Rule 174 is an exact copy of Federal Rule 42; and the Federal Rule has been construed as authorizing the above practice. Bedser v. Horton Motor Lines, Inc., 122 F.2d 406 (4th Cir. 1941).

This rule supersedes such previous decisions as McFarlane v. Griffin, 80 S.W. 2d 1100 (Tex. Civ. App.-Fort Worth 1935), to the extent that they held that the trial judge was powerless to render judgment upon a controlling issue until the entire trial upon all the issues was completed.

5 Tex. B.J. 125 (1942) reprinted in 8 Tex. B.J. 12 (1945).

(No. 33) Question: If in a particular case a jury is demanded and the jury fee is paid at the proper time, does a party who properly urges therein a dilatory plea that presents a question of fact have the right to a jury trial upon such plea?

Answer: The judge has the discretion to require the trial to be had before the trial of the merits. This is ordinarily the preferred practice, because frequently it will save time and will avoid injecting prejudice into the merits. The former difference between the practice upon a dilatory plea and that on a plea in bar should no longer present difficulty because the practices in this respect are doubtless assimilated by the second subdivision of Rule 174.

The judge also has the discretion, and especially so where issues on a dilatory plea and on one or more pleas in bar are the same, to try the plea along with the case, submitting the dilatory plea first and conditioning the consideration of the case proper upon a verdict or finding adverse to such plea.

The authorities upon which this opinion is based are Constitution, Art. I, Sec. 15,Art. V, Sec. 10; Peck & Hickernell v. Noble Oil & Dev. Co., 267 S.W. 1018, 1020 (Tex. Civ. App.-Amarillo 1924), with which compare Bexar County v. Davis, 223 S.W. 558 (Tex. Civ. App.-San Antonio 1920) (question of law); Landa v. J. T. Stark Grain Co., 40 Tex.Civ.App. 635, 90 S.W. 1181 (1905); Connellee v. Drake, 16 S.W. 175, 4 Willson 146 (Tex. Ct. App. 1890); accord Holmes v. Coalson, 178 S.W. 628, 632 (Tex. Civ. App.-Fort Worth 1915) (after the amendment of 1907); Becker v. Becker, 218 S.W. 542, 544 (Tex. Civ. App.-San Antonio 1920); Howeth v. Clark, 19 S.W. 433, 434, 4 Willson 549 (Tex. Ct. App. 1892); Caswell v. Hopson, 47 S.W. 54 (Tex. Ct. App. 1898); Leahy v. Ortiz, 38 Tex.Civ.App. 314, 85 S.W. 824 (1905); Johnson v. Miller, 163 S.W. 592 (Tex. Civ. App.-Amarillo 1914); Producers' Oil Co. v. Daniels, 249 S.W. 308 (Tex. Civ. App.-Fort Worth 1922); Pecos & N. Tex. Ry. Co. v. Thompson, 140 S.W. 1148, 1151 (Tex. Civ. App.-Amarillo 1911); see Rules 166, 174, and 175, and Question No. 32; and this Subcommittee's answer thereto in Tex. B. J., May issue, 1942; Tynberg v. Cohen, 67 Tex. 220, 2 S.W. 734 (1887); Robertson v. Ephraim, 18 Tex. 118, 122 (1856); Griffin v. Linn, 3 S.W. 2d 148, 150 (Tex. Civ. App.-Amarillo 1928); Randals v. Green, 258 S.W. 528, 530 (Tex. Civ. App.-Waco 1924; City of Fort Worth v. Cotton, 198 S.W. 1015, 1016 (Tex. Civ. App.-Fort Worth 1917); compare Scott v. Clark, 38 S.W.2d 382 (Tex. Civ. App.-Austin 1931); Hartford Fire Ins. Co. v. Shook, 35 S.W. 737, 738 (Tex. Ct. App. 1896); consult also Rules 1, 248, 301, and 330 (g) and (h).

5 Tex. B.J. 170 (1942) reprinted in 8 Tex. B.J. 15 (1945).