Rea v. Pickthorn , 29 Ga. App. 578 ( 1923 )

Bell, J.

1. A motion was made by the defendant to dismiss the suit, upon the ground of an inconsistent election in a former suit. After hearing evidence in support of the motion, the court sustained it by a judgment as follows: “The within petition, on motion of defendant’s counsel, is dismissed on the ground that the plaintiff, having elected to sue on the notes mentioned in the contract attached to the petition, is estopped to maintain this petition.” The only assignment of error is as follows: “ To this order and judgment so dismissing his petition, the plaintiff ff. H. B. Rea then excepted and now excepts, and assigns error thereon, and for assignment of error says that the court erred as a matter of law in so dismissing his petition, upon the ground stated in said order and judgment, or upon any other ground, and says that this is especially true when the court had already so generally overruled the defendant’s demurrer to-his petition.” Held: This assignment of error was but the equivalent of complaining that the judgment was contrary to law, and it was not sufficient to raise for decision any question as to whether the ruling was prematurely rendered or whether the issue presented should have been determined by a jury (Littleton v. Spell, 77 Ga. 227, 2 S. E. 935) in due course upon a proper plea by the defendant; and under such assignment the judgment must be affirmed, where the evidence offered in support of the motion, in conjunction with the facts alleged in the petition, not only authorized but demanded an adjudication, at any time, in any form, that the plaintiff as a matter of law was estopped to maintain the suit.

Decided February 14, 1923. Norman Shaituch, Henry & Jaclcson, for plaintiff. Rosser & Shaw, contra.

2. Where in a suit for damages for an alleged, breach of a contract for the sale and delivery of personalty it appears from the petition that the same was to be delivered in settlement of certain notes held by the plaintiff against the defendant, under a written contract between the parties to that effect, and where it is indisputably shown by the defendant, upon a motion to dismiss the petition, that the plaintiff formerly filed a suit against him upon the notes, in a court of competent jurisdiction, and prosecuted the same to a verdict and judgment for a balance due thereon, the defendant is entitled to an adjudication that the plaintiff by his former election is estopped to maintain the subsequent action; and in such case, where the only assignment of error is in the form indicated above, the judgment of dismissal therein set forth can only be affirmed. .Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.