74 So. 822 | Miss. | 1917
delivered the opinion of the court.
This action was begun in the circuit court of Coahoma county by Ellington M. Fant appellee, to recover certain money on deposit to the credit of the Tishomingo Tie & Stone Company. An attachment was sued out by Mr. Fant against the Tie & Stone Company, and garnishments were served on the Bank of Olarksdale and the Planters’ Bank. B. B. Warriner, receiver of the Tishomingo Tie & Stone Company, intervened, claiming that he, as receiver, was- entitled to the funds on deposit in the banks for the benefit of the creditors of the insolvent Tie & Stone Company. The case was submitted on an agreed statement of facts, and the circuit court decided that Mr. Fant, and not the receiver, was entitled to the aforesaid funds on deposit, from which judgment the receiver prosecuted this appeal.
The agreed statement of facts is in these words, viz.:
“It is admitted that the Tishomingo Tie & Stone Company was before the receivership herein an alleged corporation organized by W. M. Cozart, Geo. 'W. Edwards, and others, for the sole purpose of defrauding stockholders and the general public and of stealing and converting any and all funds which came into its hands to the use of the said Cozart, Edwards, and others, and that all sums procured by said corporation, or any members thereof, for the purchase of stocks was fraudulently procured, and that said money should be returned to the creditors, either through the hands of the receiver or otherwise, as the court may decide.
“It is further agreed that Ellington M. Fant paid into said corporation, through its agent W. M. Cozart, the sum of dne thousand eight hundred dollars, and that said corporation is now indebted to the said Ellington M. Fant in a sum in excess of one thousand dollars.
“It is further agreed that the said Ellington M. Fant, on or about the 21st day of January, A. D. 1914, employed Gerald Fitz Gerald as his agent and attorney in fact*179 to procure for him, the said Ellington M. Fant, by any means which he, the said attorney, -could a return of the said money.
“It is further agreed that on or about the 22d day of January, A. D. 1914, the said Ellington M. Fant, after having employed the said Gerald Fitz Gerald, made a trip to Corinth, Miss., and Tishomingo, Miss., to ascertain, if possible, the condition of the corporation known as the Tishomingo Tie & Stone Company, above named, and' that while there, upon the solicitation of -other creditors, the said Ellington M. Fant did on or about the 29th day of January, A. D. 1914, allow his name to be joined with other creditors of the said Tishomingo Tie & Stone Company, to an original bill in the chancery court of Tishomingo County, Miss., asking for a receiver of the said Tishomingo Tie & Stone Company, said case being styled E. Fant and Others v. The Tishomingo Tie & Stone Co., and Others, and being No. '739 on the docket of the said chancery court.
“It is further agreed that said original bill in said chancery court was first taken to Hon. Claude Clayton, a circuit judge, who ordered issuance of a writ of injunction on January 29, 1914, enjoining any and all persons having funds belonging to the said Tishomingo Tie & ’Stone Company, from paying the same out or disposing of them in any way until further order of the court, and said injunction was issued January 31, 1914, but that no receiver was appointed under said bill, and that although the said fiat was signed by said judge on January 29, 1914, the said original bill was not filed in the chancery clerk’s office until January 31, 1914; and that said writ of injunction was served on the Planters’ Bank, of Clarksdale, Miss., and the Bank of Clarksdale, of Clarksdale Miss., on the 2d day of February, A. D. 1914.
“It is further agreed that upon the prayer in said original bill the chancellor of said chancery court at Corinth, Miss., did on the 2d day of February, 1914, appoint B. B. Warriner receiver of the said Tishomingo*180 Tie & Stone Company, and lie is now duly and legally qualified and acting receiver of said company.
“It is further agreed that on the 31st day of January, 1914, the said Gerald Fitz Gerald, as agent and attorney of Ellington M. Fant, served a good and valid writ of attachment on the Planters’ Bank of Clarksdale, Miss., and the Bank of Clarksdale, of Clarksdale, Miss., except the said receiver may now have prior right thereto, if any, the court should now hold attaching all funds in their hands belonging to the said Tishomingo Tie & Stone Company, W. M. Cozart, Secretary and Treasurer, or Geo. E. Edwards.
“It is further agreed that the said banks had at said dates the following amounts in their hands, to wit: The said Bank of Clarksdale had in its hands to the credit of W. M. Cozart, secretary and treasurer, the sum of eight hundred and seventy-seven dollars and eighty-five cents; and the said Planters’ Bank had in its hands the sum of one hundred and twelve dollars and sixty-five cents to the credit of G. T. Edwards.
“It is agreed that said money belonged to and was the property of the Tishomingo Tie & Stone Company, on the date when the same was attached.
“It is further agred that the said banks both made answer in the said attachment suit and in the said chancery court, stating all the facts known to them, and stating that the writ of injunction, as above stated, was served on the 2d day of February, A. D. 1914, and that the said attachment above set out was served on them on January 31, 1914. '
“It is further agreed that the sole question involved in the trial of this cause is at to whether or not the rights of the receiver take precedence over the rights of the said Ellington M. Fant.”
There is no question of actual bad faith in this ease. It appears from the agreed statement of facts that Mr. Fant procured the appointment of a receiver for the insolvent Tie & Stone Company. The bill was filed by him
The general rule as to the election of remedies is that, where a party has a right to choose one of two or more appropriate, but inconsistent, remedies, and, with knowledge of the facts, makes deliberate choice, then he is estopped from resorting to the other remedy.
Mr. Fant, in this case, had a perfect right to rely upon his own foresight and initiative and thereby secure a preference over other creditors. He had the election of proceeding by attachment and garnishment, and he had the coexistent right to join in a creditor’s bill and the appointment of a receiver. He elected to pursue the latter course, and we think he must stand by his choice of remedies.
“Election is simply what its name imports, a choice shown by an overt act between two inconsistent rights, either of which may be asserted at the will of the chooser alone.” Bierce v. Hutchins, 205 U. S. 340, 27 Sup. Ct. 524, 51 L. Ed. 828.
From our standpoint, when Mr. Fant secured a preference by the attachment and garnishment proceedings, his action was inconsistent with his former action. There are elements of estoppel in the doctrine of election. The intervening rights of his co-complainants in the receivership may be seriously affected by the attachment. As before stated, it is not claimed that Mr. Fant was guilty of any actual bad faith. However, it must be obvious that one creditor might induce other creditors to sleep on their rights by inducing them to apply for a receiver or by joining with them in an application for the appointment with a receiver for the purpose of securing for himself an unfair advantage. He, in this case, elected one remedy, and he will not be permitted to elect another and inconsistent remedy.
Reversed and remanded.
