Bright v. Mollohan

• Decision Date: 13 October 1914
• Citation: 83 S.E. 298,75 W.Va. 116
• Parties: BRIGHT ET AL. v. MOLLOHAN ET AL.
• Court: West Virginia Supreme Court

83 S.E. 298

75 W.Va. 116

BRIGHT ET AL. v. MOLLOHAN ET AL.

Supreme Court of Appeals of West Virginia.

October 13, 1914

Submitted September 29, 1914.

Syllabus by the Court.

A litigant cannot pursue to judgment or decree two different remedies for his demand.

The prosecution of one remedial right to judgment or decree whether the judgment or decree is for or against the party so prosecuting, is a decisive act which constitutes an election barring the party from the subsequent prosecution of inconsistent remedial right.

A party availing himself of a decree as far as favorable to him cannot appeal from the decree wherein it is not favorable to him if his acceptance of the benefit on the one hand is totally inconsistent with appeal on the other.

Appeal from Circuit Court, Braxton County.

Bill by Amos Bright and others against C. E. Mollohan and others. Decree for plaintiffs and J. P. Thompson appeals. Dismissed.

Haymond & Fox, of Sutton, for appellant.

Hines & Kelly and Hall Bros., all of Sutton, for appellees.

ROBINSON J.

Thompson claimed a commission from Bright and others for making sale of a tract of timber. Mollohan claimed that he made the sale and that the commission was due to him. Each claimed under a separate and distinct contract with the vendors of the timber. Mollohan sued the vendors, Bright and the others, in assumpsit for the money he claimed. Thompson also, ten days later sued them in assumpsit on his contract.

Thereafter Bright and the others brought the suit that is now before us praying that prosecution of the two actions so instituted against them be enjoined, and that Thompson and Mollohan be required to interplead in relation to their respective claims for the commission. The injunction was preliminarily awarded, stopping the actions at law.

Mollohan by demurrer and answer, resisted the right of Bright and the others to maintain the suit for an injunction and interpleader. Thompson answered the bill briefly denying Mollohan's right to the commission, and asking that he have decree for the commission arising from the sale. The cause proceeded to a hearing, at which the injunction was dissolved and the bill dismissed.

The injunction being out of the way, Thompson continued the prosecution of his action at law, with the result that he failed therein, and judgment was rendered for the defendants. Mollohan also prosecuted his action, to verdict and judgment against the defendants, on his claim. A writ of error sought by Thompson, to the judgment in his action, was refused. And as to Mollohan's judgment, a writ of error sought by the defendants in the action, was refused.

After all this, the year in which an appeal to this court may be taken not having expired, Thompson obtained an appeal in the injunction and interpleader suit. That appeal is now reached for our consideration. Mollohan moves to dismiss the appeal. Upon the showing which he makes, we are of opinion that his motion must be sustained. No other matter is therefore open for our attention.

That Thompson cannot maintain the appeal after having elected to rely on his action at law, seems clear. The principle here applicable frequently arises for application, is well understood, and is of just and practical import. A litigant cannot pursue to judgment or decree two different remedies for his demand. To entertain the appeal in the injunction and interpleader suit would be to allow Thompson further to litigate that which, by his own election, has been determined and finally foreclosed in his action at law. In that action he could not get an appeal. Certainly, by appealing the equity suit, he cannot affect or change the judgment against him in the action. That judgment settles the fact that he is not entitled on his claim. Can we in...