Roman v. Dimmick , 123 Ala. 533 ( 1898 )

TYSON, J.

“When a suit at law and a bill in chancery are instituted for the same claim, the opposite party, on suggestion supported by affidavit, may move the court in term time, or the chancellor in vacation, to inspect the records; and if it appear that two suits are for one and the same cause of action, it shall be ordered that the plaintiff or claimant elect in which he will proceed, and that he dismiss the other.” — Rule of Practice 114,. p. 1227. This rule is in the same language as rule 108 in the revised Code, p. 840, and in effect when the case of Dunlap v. Newman et al., 52 Ala. 178, was decided. The leading question in that case, and the only one presented here, was the right of the chancellor to compel a complainant in a bill to elect between his action at law and his bill in chancery founded on the same claim before the respondents’ have answered. It was there held that before a court of equity will compel an election, the defendant must file sufficient answer, and the time for excepting to it must have expired. To the same effect is the case of Houston v. Sadler, 4 Stew. & Port. 130. In this latter ease, it was said“But if it is admitted, that two proceedings were seeking to subject the same property to the satisfaction of one and the same debt; yet, the complainants ought not to have been called on to elect until after the coming in of the defendants’ information the answer could supply, in making their election.” — See also 1 Daniel Ohan. PI. & Pr. (6th ed.) 634 and note; Story’s Eq. PI. (10th ed.) §742.

The motion to -dismiss the appeal must be denied. Until the court had the right to compel the complainant to make an election as to which of his suits he would prosecute, he had the right to prosecute both of them. And the fact that he did prosecute his action at law after the erroneous decree was entered ordering him to elect, is not a good ground for dismissing his appeal in this cause.

It follows that the chancellor committed an eiror in requiring the complainant to elect before the coming in of the answer of the respondents, and in dismissing the bill for the failure to make the election within the time fixed by the former order. The order requiring an election is annulled, and the decree dismissing' the bill is reversed and the cause remanded.

Reversed and remanded.