Ex Parte Barclay-Hays Lumber Co. , 211 Ala. 500 ( 1924 )

A motion to require an election under chancery rule 112 can only prevail after the bill of complaint has been fully answered. Roman v. Dimmick, 123 Ala. 533, 26 So. 233. No answer was filed in the case at bar when the motion for an election was granted. Moreover, this record does not present a case requiring an election either under chancery rule 112 or section 2451 of the Code of 1907. In either instance the suits must not only be between the same parties but for the same cause.

"It is a general rule that where a plaintiff is prosecuting an action at law and a suit in equity against a defendant at the same time for the same cause he may be compelled by the court, on application by the defendant, to elect whether he will proceed with the one or the other; but to come within this principle it is required that the two suits must have substantially the same aim and scope, and the relief sought must be in each case substantially the same. In other words, the plaintiff should not be compelled to elect unless the remedy in the suit at law is equally complete and adequate with the remedy in equity." 9 R. C. L. p. 964, § 11.

See, also, note and cases cited Ann. Cas. 1914B, p. 1218.

"To come within the principle of election, the two suits must have substantially the same aim and scope, and the relief sought in each case must be substantially the same." Ex parte Ala. Gold Life Ins. Co., 59 Ala. 192; Keel v. Larkin, 83 Ala. 142,3 So. 296, 3 Am. St. Rep. 702.

While the ultimate purpose of the two suits is the collection of the plaintiff's demand against the Barclay Planing Mill Company, the parties are not the same, as there are several respondents to the equity suit who are not parties to the action at law. Nor is the remedy in the action at law equally complete and adequate with the remedy in equity. One simply seeks a judgment at law against one of the respondents to the equity suit, while the suit in equity seeks the enforcement of a lien on certain property and the annulment of certain sales or transactions as fraudulent. Moreover, should the complainant fail to establish the equity of its bill, it could not get a judgment or decree for its demand, which he could do in his action at law, regardless of the equity of the bill in chancery. We therefore hold that the record does not justify the requirement of an election either under chancery rule 112 or section 2451 of the Code of 1907.

As disclosed by the opinion in Dunlap's Case, 209 Ala. 453,96 So. 441, section 2451 is new to the present Code and was borrowed from Georgia and is but the codification or repetition of the common law. It was not therefore intended to change the rule as it existed at common law and as declared and followed in our own case of Ex parte Ala. Gold Life Ins. Co., 59 Ala. 192.

The case of Jones v. Jefferson County, 206 Ala. 13, 89 So. 174, is not an authority against the present holding, as the election was there limited to the identical thing in the two suits between the same parties. Moreover, what was said was not decisive of the case as will be disclosed by the subsequent opinion of the court upon rehearing.

It is suggested by counsel for appellees that this court should not award the writ of mandamus directing the trial judge to vacate the order requiring an election, because the petitioner had not first applied to the trial judge to vacate the same, and reliance is placed upon the case of Ex parte Edwards, 123 Ala. 102, 26 So. 643. This case is undoubtedly sound, and the writ would be denied in this instance if it appeared that petitioner had not appealed to Judge Berney to set the same aside and had not opposed or resisted the order, but the record disclosed that counsel did appear and oppose the order. This being true, there can be no presumption that the trial court would have acted otherwise upon a motion to set aside or vacate said order upon the original motion.

The writ is awarded, with directions to the trial court to vacate and set aside the order requiring the petitioner to elect between the two suits.

Writ awarded.

SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.