Georgia Power Co. v. Fountain , 207 Ga. 361 ( 1950 )

Candler, Justice.

(After stating the foregoing facts). This case involves the doctrine of election of remedies and the principle of estoppel resulting therefrom. Beard v. Beard, 197 Ga. 487 (29 S. E. 2d, 595). Estoppel by election results where a choice is exercised between inconsistent remedies. Chapple v. Hight, 161 Ga. 629 (131 S. E. 505). The election and prosecution of an available remedy is a bar to the pursuit later of an inconsistent one. Hardeman v. Ellis, 162 Ga. 664 (135 S. E. 195). An election of remedies has been defined as the choosing between two or more different and coexisting modes of procedure and relief allowed by law on the same state of facts. 18 Am. Jur. 129, § 3. It has been said that the so-called “inconsistency of remedies” is in reality not an inconsistency between the remedies themselves, but must be taken to mean that a certain state of facts, relied on as the basis of a certain remedy, is inconsistent with and repugnant to another state of facts relied on as the basis of another remedy. 18 Am. Jur. 135, § 12. Two remedies are inconsistent, if the assertion of one involves the negation or repudiation of the other. Peterson v. Lott, 200 Ga. 390 (37 S. E. 2d, 358). A proceeding at law for the purpose of ascertaining and fixing the amount to be paid for private property which is being taken for a public use 'is inconsistent with the remedy afforded by equity to prevent the taking of private property for purposes other than a public use. Bibb Brick Co. v. Central of Georgia Ry. Co., 150 Ga. 65 (102 S. E. 521). The first remedy inferentially admits that the taking is necessary for a public use, and value is the only issue to be determined in the proceeding; the latter denies the necessity for such a taking, and seeks to prevent the same. And this court has said: “Where the owner of an easement in land takes part in proceedings to condemn his interest for public purposes, selecting an assessor, offering evidence, etc., and after an award accepts full payment, such owner will be thereby estopped from urging objections, in an equitable proceeding for injunction, etc., to the condemnation proceedings.” Central of Georgia Ry. Co. v. Bibb Brick Co., 149 Ga. 38 (99 S. E. 126). See also Atlantic & Birmingham R. Co. v. Penny, 119 Ga. 479 (46 S. E. 665); Georgia Granite R. Co. v. Venable, 129 Ga. 341, 348 (58 S. E. 864); Winslow v. B. & O. R. Co., 208 U. S. 59 (28 Sup. Ct. 190, 52 L. ed. 388); 10 R.C.L. 210, § 179. And there is no merit in the contention here made that the rule announced and applied by this court in Central of Georgia Ry. Co. v. Bibb Brick Co., supra, should not be applied in the present case, because the plaintiffs, as the interested landowners, had not accepted the awards made for the property involved, and this is true for these several reasons:

(a) “No suitor may prosecute two actions in the courts at the same time, for the same cause, and against the same party, and in such a case the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously; and the pendency of the former shall be a good defense to the latter, if commenced at different times.” Code, § 3-601; Johnson v. Epting, 185 Ga. 667 (196 S. E. 413). After the trial judge refused to grant a temporary injunction, the plaintiffs, by conduct, voluntarily abandoned their equitable suit, and elected to pursue an inconsistent remedy, by thereafter participating, as they did, personally and by counsel, in the condemnation proceedings. 20 C. J. 32, § 21; Intertype Corp. v. Pulver, 101 Fla. 1176 (132 So. 830, 135 So. 793).

(b) The awards made in the condemnation proceedings and afterwards filed by the assessors in the office of the cleric of the superior court were judgments rendered by a competent tribunal. Thomas v. Central of Georgia Ry. Co., 169 Ga. 269 (149 S. E. 884). The defendant, after the awards were made by the assessors, had no right to abandon the condemnation proceedings and by so doing relieve itself of liability to pay the awards; and the plaintiffs, as eondemnees, were estopped to say that the assessors had no jurisdiction to make the awards. Central of Georgia Ry. Co. v. Thomas, 167 Ga. 110 (144 S. E. 739).

(c) The validity of the awards or judgments rendered in the condemnation proceedings by the assessors, as a tribunal competent to fix the rights and liabilities of the parties with reference to the matters and things involved, could not be collaterally attacked in the plaintiff’s equitable suit, and a further prosecution of the latter proceeding, as pleaded, would in law amount to such an attack. Hogg v. City of LaGrange, 202 Ga. 767 (44 S. E. 2d, 760).

(d) The defendant paid the full amount of the awards into the registry of the court for the use and benefit of the plaintiffs, after they had refused to accept it when tendered, and such deposit under the statute is the legal equivalent of payment to the plaintiffs. Code, § 36-602; Oliver v. Union Point & White Plains R. Co., 83 Ga. 257. (9 S. E. 1086); Pilgreen v. City of Atlanta, 204 Ga. 710 (51 S. E. 2d, 655). And after awards for the property involved in the instant case were made and filed, as required, in the office of the clerk of the superior court, and the condemnor paid the full amount so awarded into the registry of the court for the use and benefit of the condemnees — they having refused to accept it when previously tendered — the defendant became vested with provisional title for the easements sought to be condemned, which could be defeated as by a condition subsequent if it should fail to pay any additional amount recovered against it by final judgments on the appeals; but not otherwise. Oliver v. Union Point & White Plains R. Co., supra.

(e) The plaintiffs’ appeals are now pending for trial before a jury in a court of competent jurisdiction and the plaintiffs will not be permitted to abandon them for the purpose of pursuing another inconsistent remedy. “It is well settled that one can not, in one court, set up matter from which he receives a benefit by an adjudication in his favor, and in a subsequent action repudiate his position taken in the first. In other words, courts of justice will not allow a party to blow hot and cold.” Neal Loan & Banking Co. v. Chastain, 121 Ga. 500 (49 S. E. 618). Consequently, the trial judge should have found in favor of the defendant’s plea of estoppel and terminated the instant case, it appearing without any question from the evidence submitted that the facts alleged therein were true. It was error not to do so, and since all subsequent proceedings taken in the case were nugatory, no ruling is necessary or required on any other question presented by the writ of error. Swofford v. Glaze, 206 Ga. 574 (57 S. E. 2d, 823).

Judgment reversed.

All the Justices concur, except Duck-worth, C.J., Head and Hawkins, JJ., who dissent.