34 Ga. App. 348 | Ga. Ct. App. | 1925
(After stating the foregoing facts.)
It is a well-recognized rule of law that a party can not in the same action pursue two inconsistent remedies, but he can obtain judgment on an open account for materials furnished and in the same action establish his materialman’s lien. Parish v. Murphey, 51 Ga. 615. In the case of Belmont Farms v. Dobbs Hdwe. Co., 124 Ga. 827 (1) (53 S. E. 312), it was held: “The taking of a promissory note for an amount -due on an account, which is the basis of a mechanic’s, materialman’s, or contractor’s lien, in the absence of an express agreement, will not, until the note is paid, accomplish an extinguishment either of the account or the lien. But as a condition precedent to final judgment, either upon the account or the lien, the note must be surrendered to the maker, or accounted for by showing that it is not in any event enforceable against him.” Whether it would ordinarily be an improper joinder of causes of action to seek in the same suit a foreclosure of a materialman’s lien and also a judgment on a note given for the amount thereof, in the case under consideration the maker of the note, by a stipulation in the face thereof, not only recognized the existence of such a lien, but agreed that the lien was not waived by the payee’s acceptance of the note. This agreement on his part amounted to a waiver of whatever right, if any, he might otherwise have had to object to the joinder of .the two causes of action, and would estop him from denying the plaintiff’s right to pursue the two remedies in the same suit. Counsel for the 'pEintiff in error concedes that the mere taking of the note would not operate to extinguish the lien, but insists that suing on the note did extinguish it. If that were so, the note amounted to no more than an admission of the indebtedness, and the promise contained therein was altogether meaningless. It would be a vain agreement which provided that the acceptance of the note would not waive the lien, if a suit on the note would have such effect. If the rights reserved by the payee in accepting the note were lost by a suit on it, the reservation of them would have been wholly useless in the first place. The parties must have intended that the lienholder
There having been no final judgment, the defendant, while having the right to bring to this court a bill of exceptions to review the judgment overruling his general demurrer to the plaintiff’s petition, because the “judgment complained of, if it had been rendered as claimed by the plaintiff in error, would, have been a final disposition of the cause” (Civil Code, § 6138), could not in the same bill of exceptions properly except also to the. judgment striking his answer. “The latter judgment could not be reviewed by direct writ of error; and the exceptions thereon, being premature, can not be considered with the exceptions to the judgment on the demurrer to the petition.” Chatham Motor Co. v. Lincoln Motor Co., 31 Ga. App. 229 (2) (120 S. E. 444).
Judgment affirmed.
