Kehoe v. Patton

The defendant's special plea in bar rests on the assumption that the bringing of the suit in equity by the plaintiff against Peter Doyle and the defendant was an election of his remedy, and that such an election is a bar to the present suit. We do not think, however, that the mere bringing of the suit in equity, it not having proceeded to final decree, amounts to an election (Jenks v. Smith, 14 R.I. 634; Quidnick Co. v. Chafee,13 R.I. 367, 369), and therefore we are of opinion that the plea is not sufficient. The defendant's remedy is by motion to require the plaintiff to elect whether he will proceed in the suit in equity or by the present action.

The demurrer is sustained and the plea overruled. Case remitted to the Common Pleas Division for further proceedings.