Ex parte Barclay-Hays Lumber Co.

• Decision Date: 19 June 1924
• Docket Number: 1 Div. 330.
• Parties: EX PARTE BARCLAY-HAYS LUMBER CO.
• Court: Alabama Supreme Court

101 So. 179

211 Ala. 500

EX PARTE BARCLAY-HAYS LUMBER CO.

1 Div. 330.

Supreme Court of Alabama

June 19, 1924

Original petition of the Barclay-Hays Lumber Company for mandamus to the Honorable Saffold Berney, as Judge of the Circuit Court of Mobile County. Writ awarded.

The petition alleges that on January 25, 1924, petitioner brought suit at law on the common counts against the Barclay Planing Mill Company, in the circuit court of Mobile County, to recover an indebtedness of $8,476.43, summons in which was served upon defendant on February 9, 1924, and the cause is still pending.

Smiths Young, Leigh & Johnston, of Mobile, for petitioner.

Outlaw & Kilborn, of Mobile, for respondent.

ANDERSON C.J.

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 annullment 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...