Land v. Hall , 46 Ga. App. 404 ( 1933 )

Jenkins, P. J.

The plaintiff, a cropper, foreclosed a general and special laborer’s lien, claiming a special lien upon the crop of tobacco raised by her on the land of the defendant. The lien was levied upon certain live stock. The defendant filed a plea in abatement, setting forth that prior to the foreclosure of the lien the plaintiff had brought a suit in trover against the defendant, claiming title to one half of the tobacco grown by her on the lands of the defendant, which the plea in abatement avers in-eluded the tobacco on which it was sought to foreclose the special laborer’s lien. It was alleged by the plea in abatement that the previous trover suit had resulted in a judgment of nonsuit, which was entered •prior to the foreclosure of the laborer’s lien; that the plaintiff, having elected by the trover suit to assert title to the particular property, was thereby estopped to pursue the inconsistent remedy of seeking to enforce a lien against it as the property of the defendant. On motion of the defendant the plea in abatement was stricken as insufficient. To this judgment exceptions pendente lite were taken. On the trial the plaintiff testified that at the time the former trover suit was instituted she thought that the crop had already been divided. The jury found in favor of the plaintiff, and the defendant excepts to the overruling of his motion for a new trial, and assigns error on the exceptions pendente lite. Held:

1. Where one with actual knowledge or notice of the substantial facts is in a situation in which he may elect between two inconsistent positions or proceedings, the choice of his position or proceeding must be made before bringing suit. He can not bring either action without selecting and determining to accept and occupy a position consistent with that action or position and inconsistent with the other. The choice of one of such alternative positions or proceedings operates at once as a final and absolute bar to the other. Board of Education v. Day, 128 Ga. 156, 163, 166 (57 S. E. 359) ; Hardeman v. Ellis, 162 Ga. 664, 685 (135 S. E. 195); Wright v. Zeigler, 70 Ga. 501 (5, a) ; Bacon v. Moody, 117 Ga. 207, 210 (43 S. E. 482) ; Kennedy v. Manry, 6 Ga. App. 816, 820 (66 S. E. 29).

2. There is a patent inconsistency between different legal remedial rights, where one is based upon a claim of title to property in the plaintiff, and the other is based upon an affirmance of title in the defendant. Board of Education v. Day, supra.

3. While it is the rule that an election as between inconsistent remedies can be charged against a plaintiff only in a case where there is actual knowledge or implied notice of the substantial facts, and that the prosecution of an action based upon a misconception of material facts, of which he was not charged with implied notice, does not constitute an election such as would preclude a plaintiff from thereafter prosecuting an action based upon the inconsistent remedial right (Owens v. Parker, 8 Ga. App. 221, 68 S. E. 1009; Puett v. Edwards, 17 Ga. App. 645, 88 S. E. 36; Bacon v. Hanesley, 19 Ga. App. 69, 90 S. E. 1033; 20 C. J. 21, § 17[b]), still in the instant case, there being in the plea in abatement no admission that the previous trover suit was instituted by the plaintiff in ignorance of the essential facts involved, and in the absence of any such admission it being presumed that the plaintiff was cognizant of the facts pertaining to her case, the plea in abatement set forth a previous election by the plaintiff to pursue a remedy inconsistent with that pursued in the instant case, such as to preclude her from seeking to assert the lien sought to be foreclosed. Whether in point of fact such former election would bar the present action would depend upon a determination of whether or. not the previous action was instituted by the plaintiff with actual knowledge or notice of the substantial facts.

Decided January 7, 1933. Adhered to on rehearing, February 18, 1933. J. B. Moore, for plaintiff in error, 'll. J. Lawrence, contra.

4. Under the foregoing rulings, the court erred in striking the defendant’s plea in abatement; and since this ruling entered into and affected all subsequent proceedings, they were thereby rendered nugatory. Hammontree v. Southern Ry. Co., 45 Ga. App. 728 (165 S. E. 913).

Judgment reversed.

Stephens and Sutton, JJ., concur.