Viator v. Stone

DISSENTING OPINION. I can add nothing to what Judge Griffith has said as to this action being barred under the rule of res judicata, in which I concur. I am of the further opinion, however, that it is also barred under the rule governing the election of remedies. Where a party has the right to resort to either of two inconsistent remedies, regardless of their form or class, he waives one of them by resorting to the other, and is thereby precluded from thereafter resorting to the remedy waived. 28 C.J.S., Election of Remedies, Secs. 1, 2 and 3, pp 1057-1061; 18 Am. Jur., Election of Remedies, Secs. 1, 11 and 12; Watson v. Perkins, 88 Miss. 64, 40 So. 643; Warriner v. Fant, 114 Miss. 174, 74 So. 822; Miller v. Phipps; 161 Miss. 564, 133 So. 128, 137 So. 479.

When the Tax Commission rendered its order approving the assessment here made against the appellant, he had the choice of two remedies, (1) to pay the tax assessed against him and sue for its recovery under Section 10122, Code 1942, or (2) without paying the tax, to have that order reviewed and, if erroneous, set aside by the Circuit Court of Hinds County by means of a writ of certiorari under Section 1207, Code 1942. He elected to and did proceed under the latter. The inconsistency in the two remedies is that under the first he must pay the tax before instituting an action for its recovery, while under the second he may have the order set aside if erroneous without undergoing the inconvenience of paying the tax thereby depriving himself of the use of the money required for that purpose. Section 10122, Code 1942, does not contemplate that a taxpayer before resorting to it may harass the State Tax Commission and its Chairman with lawsuits and appeals, as was here done, before at long last complying with the provisions of the Section and then instituting an action for the recovery of the taxes paid.

While the appellees' plea does not specifically refer to the doctrine of election of remedies, it is implicit therein and should be here applied. The judgment of the court below should be affirmed.