Forest Lumber Co. v. Lightsey, No. 24261

No. 24261 | Miss. | Nov 10, 1924

Ethridge, J.,

delivered the opinion of the court.

The appellee, Lightsey, was plaintiff in the court below, and sued out an attachment before a, justice of the peace against one W. F. Hutto, alleging in the affidavit that Hutto is justly indebted to him in the sum of one hundred eighty-five dollars and twenty-four cents, and that the “said Hutto has property rights in action which he has converted, or is about to convert his property into money or evidence of debt, with intent to place it beyond the reach of Ms creditors, ’ ’ and prayed for the issuance of an attachment. Bond being) given, attachment was accordingly issued, and certain logs were seized as being the property of Hutto, and a copy of the summons delivered to the said Flutto. The plaintiff also filed an itemized sworn statement, showing; logs sold by the plaintiff to Hutto. The Forest Lumber Compay filed a claimant’s affidavit, in which it alleged that the property seized was its property, and not the property of Hutto, and gave a claimant’s bond in the sum of four hundred dollars for the forthcoming of the property. A default judgment was taken against Hutto for the sum of one hundred eighty-five dollars and twenty-four cents and costs, and the property condemned to be sold to pay the said judgment. Thereupon the claimant’s issue was tried by the justice of the peace and decided adversely to the claimant, the appellant here. An appeal was taken to the circuit court, where a judgment was rendered against the claimant on the claimant’s issue, and in favor of the plaintiff.

On the trial in the circuit court, without any amendment being made, the plaintiff was permitted to prove, over the objection of the claimant, that the logs were sold to Hutto verbally, and title to the logs was reserved to the seller, the plaintiff, until fully paid for. As stated, there was no effort to change the proceeding from attachment to replevin, if it were permissible to make such amendment, which we do not now decide. The plaintiff having elected to proceed on the theory that the defendant, Hutto, was a debtor of the plaintiff, and that Hutto was the owner of the property attached, and having taken a judgment against Hutto for the purchase price of the logs, it is bound by such election, and could not. proceed against Hutto, and take judgment against him, under such theory, and then shift its .case when the claimant’s issue was reached, so as to set up an entirely different theory. A rule regarding' the election of remedies may he stated as follows.

“In order that election must he made, the party must have at his command different coexisting remedial rights, which are inconsistent, and not analogous, consistent, and concurrent.” 15 Cyc. 257.

“All actions which proceed upon the theory that the title to property remains in plaintiff are naturally inconsistent with those which proceed upon the theory that title has passed to the defendant.” 15 Cyc. 257, 258.

The judgment of the court below'will therefore he reversed, and judgment rendered here for appellant.

Reversed, and judgment here for appellant.