161 Ga. 629 | Ga. | 1926
As appears from the record, Mrs. Nancy S. Martin entered into a written contract with John T. Hight Jr., on October 15, 1921, by which she granted him a license to cut certain growing timber on her plantation containing about 1200 acres in Hancock County, to be sawed into lumber. Mrs. Martin breached her contract by requiring him to move his sawmill and discontinue sawing any more lumber before the completion of the
We find no error in the judgment of the trial judge. The pendency of the prior suit against Mrs. Martin is no bar to the present proceeding against Mrs. Martin and W. E. Chappie. Section 5522 of the Civil Code (1910) declares that “A plaintiff may pursue any number of consistent concurrent remedies against different persons until he obtains a satisfaction from some of them.” We adjudge the suit against Mrs. Martin alone and 'the suit against Mrs. Martin and Chappie not to be inconsistent, for in both instances the plaintiff is attempting to collect $5000 damages, and to have a special lien decreed in his favor upon the timber. The law compels an election between inconsistent remedies. Kennedy v. Manry, 6 Ga. App. 816 (66 S. E. 29); Equitable Life Assurance Society v. May, 82 Ga. 646 (9 S. E. 597); Board of Education v. Day, 128 Ga. 156 (57 S. E. 359). Waiver by election results where a choice is exercised between inconsistent remedies; and in such a case any decisive act of affirmance or disaffirmance, done with knowledge of the facts, determines the rights of the parties once and for all. The only respect in which the petition now before us differs from the first petition to which we have referred is in the prayer for injunction. The petition against Mrs. Martin and Chappie alleges the pendency of the prior suit against Mrs. Martin, and in several paragraphs practically repeats the allegation in that case. It alleges, however, that the plaintiff has been unable to obtain a trial in the proceeding against Mrs. Martin, who is alleged to have continued the case at every term of the court. It alleges that since the filing of the previous suit Mrs. Martin has sold the land upon which the timber was situated to one J. C. Eives, and that she is now insolvent. It is alleged that the deed to Eives was delivered and accepted with full knowledge
While we concede that there are numerous instances in which it is essential that the petitioner prove title, and' while under the authorities cited by plaintiff in error the contract in this case may properly be treated as a mere license to cut timber, we are of the opinion that these facts are pertinent to the present case: As already stated, the petition, as did the proceeding against Mrs. Martin alone to which we have referred, asks damages in the same amount as before, and is predicated upon the breach of the samp contract. It is true that the action, so far as Chappie is concerned, is one sounding in tort, and not in contract; but under the provisions of the uniform procedure act, as applied to the provisions of section 5522, supra, the remedy by injunction may be invoked to preserve the status until the true rights of all the parties are ascertained and fixed in the trial of the case. It will be noted that the trial judge in his order followed the provisions of section
Upon the hearing, as already stated, the evidence in behalf of the petitioner was certainly sufficient to throw it under the general rule that upon conflicting evidence the grant or refusal of an interlocutory injunction rests within the discretion of the trial judge, and that discretion will not be interfered with unless there is a manifest abuse of discretion. Plaintiff in error insists that the evidence is insufficient even when measured by the rule -we have last referred to; and this would be true if the evidence as originally incorporated in the bill of exceptions alone is considered. However, the judge by interlineation certified that the entire proceedings which are a part of the record were read and considered as evidence. As the petition is positively verified by the affidavit of the petitioner, it could be considered, and the judge certifies was considered, as a part of the evidence in the case. The statement of facts therein contained supplies sufficient evidence, under the rule already referred to, as a basis for the judgment of the court. As the bill of exceptions was amended by the court before he could certify, it recites: “Plaintiff in error sets out next hereinafter the evidence adduced on said hearing, to wit, 1st, counsel read the entire pleadings in this case, which are a part of the record, and which were considered by the court in rendering a decision in this ease.” In any case of a conflict between counsel or party on one hand and the court on the other, this court very properly can not receive the truth from any source except as certified by the presiding judge; and though it is not expressed in terms that counsel
The only assignment of error upon the court’s judgment is the general assignment that it is contrary to law; and for that reason we deem it unnecessary to rule specifically upon some of the suggestions in the brief of counsel, which, even if they were sustained, could not affect the correctness of the ruling in view of the controlling principles to which we have referred.
Judgment affirmed.