Opinion
1 Div. 791.
January 17, 1928.
Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.
Action in detinue by John Edgeworth against Georgia C. Brue. Plaintiff takes a nonsuit, and appeals from an adverse ruling overruling a demurrer to defendant's plea 2. Reversed and remanded.
Plea 2 is as follows:
"That, prior to the filing of this suit, on, to wit, April 20, 1926, the plaintiff in this cause brought suit against the defendant for money had and received, and in this suit judgment was rendered for the defendant; that the subject-matter of this suit was money paid for the horse for which the present suit was brought; that the parties to both suits are the same; that, prior to the bringing of the said first suit, on, to wit, April 20, 1926, the plaintiff had the right to elect what remedy he would invoke to enforce his rights in the matter, that is, whether he would sue the defendant for money had and received, or sue in detinue or trover for the horse; that said plaintiff thereupon elected to sue said defendant for money had and received, and brought suit against said defendant in said form and manner of action, and this defendant now says that said plaintiff is precluded from maintaining this second suit against this defendant."
To this plea plaintiff demurred as follows:
(1) Said plea does not aver that plaintiff obtained a judgment in the former suit referred to in said plea, but, on the contrary, avers that there was a judgment for the defendant in said suit.
(2) Said plea does not aver that plaintiff obtained any benefit whatsoever in the said former suit.
(3) It appears from the facts alleged that the testimony necessary to support this action of detinue will be wholly different from that necessary to support the action of "money had and received" heretofore brought by plaintiff.
(4) For aught that appears from the facts alleged, plaintiff had no cause of action for money had and received, and that detinue or trover is his sole and exclusive remedy.
(5) No sufficient facts are alleged to show that plaintiff had two inconsistent remedies, and that money had and received was one of them.
S. S. Rubira, Jr., of Mobile, for appellant.
An election of remedies to be conclusive must be efficacious to some extent, at least, and the party against whom the estoppel is pleaded must have received some benefit under his election; mistaken or unsuccessful suits are not an election. Register v. Carmichael, 169 Ala. 588, 53 So. 799, 34 L.R.A. (N.S.) 309; Hunnicutt v. Higginbotham, 138 Ala. 472, 35 So. 469, 100 Am. St. Rep. 45; Harrison v. Harrison, 39 Ala. 489; Calhoun County v. Art Metal Const. Co., 152 Ala. 607, 44 So. 876; Southern R. Co. v. Attalla, 147 Ala. 653, 41 So. 664; Huntsville R. Co. v. Corpening, 97 Ala. 681, 12 So. 295; Crowder v. Red Mountain Min. Co., 127 Ala. 255, 29 So. 847.
Foster K. Hale, Jr., of Mobile, for appellee.
Brief did not reach the Reporter.
Appellant brought suit in detinue against appellee seeking the recovery of one horse, with damages for its detention. Upon the trial court's overruling his demurrers to appellee's plea 2, he took a nonsuit and appeals, under the provision of Code 1923, § 6431, on the record.
It would seem that said plea 2, in order to be good against apt demurrer, would have had to allege, either that appellant received some benefit under the suit mentioned therein, or that said suit adjudicated his rights sought to be asserted in the instant suit. The plea did neither, and the appellant's demurrers should have been sustained. Register v. Carmichael, 169 Ala. 588, 53 So. 799, 34 L.R.A. (N.S.) 309; Sandlin v. Maury Natl. Bank, 210 Ala. 349, 98 So. 190.
The judgment overruling the appellant's demurrers to this plea is reversed, and one here entered sustaining same. The cause is remanded for further proceedings.
Reversed and remanded.