Tzouvelekas v. Tzouvelekas
| Decision Date | 14 February 1945 |
| Docket Number | 15711. |
| Citation | 33 S.E.2d 73,206 S.C. 90 |
| Parties | TZOUVELEKAS v. TZOUVELEKAS et al. |
| Court | South Carolina Supreme Court |
J. G. Leatherwood and W. E. Bowen, both of Greenville, for appellant.
Love & Thornton, of Greenville, for respondent.
The complaint in this case contains three separate causes of action, but we are concerned only with the first two stated.
In the first cause of action the plaintiff alleges that his wife because of her conduct, should be barred from asserting any right or title to a certain house and lot on Aberdeen Drive in the City of Greenville, and to certain personal property, the legal title to which is now vested in the wife. It is prayed that this property be impressed with a trust in favor of the plaintiff and the three minor children of the appellant and the respondent.
Plaintiff alleges in the second cause of action that he is the owner of a note in the principal sum of $1,205 which is secured by a purchase money mortgage executed by the defendant, covering the same house and lot; and he asks for foreclosure of the mortgage.
The case is here on appeal from an order of the Circuit Court which denied a motion made by defendant to require the plaintiff to elect between the two causes of action, on the ground of inconsistency. The position was taken then, and now, that the first cause of action proceeds upon the theory that title to or ownership of the property is in the plaintiff; and the second cause of action proceeds upon the theory that title to or ownership of the same property is in the defendant.
Certain minor issues are presented by the appeal, but the main contention, and that which will control the decision of the case, is that two inconsistent causes of action are united in the same complaint.
The second cause of action, which sets up the mortgage, might well be said to be the natural outgrowth of the first, in that it relates back to and arises out of the same transaction whereby the appellant acquired title to the property in question, and had practically the same birth (Cline v. Southern Ry. Co., 110 S.C. 534, 96 S.E 532); but this theory seems not to have been raised or presented to the lower Court.
In the well prepared briefs submitted by counsel for appellant and counsel for respondent, many of our decisions applying the doctrine of election of remedies and joinder of causes of action are cited and discussed.
Election of remedies involves a choice between different means of redress afforded by law for the same injury, or different forms of proceeding on the same cause of action. It is said in Barfield v. J. L. Coker & Co., 73 S.C. 181, 53 S.E. 170, 173: 'Election of remedies is the act of choosing between different remedies allowed by law on the same state of facts.'
Strictly speaking, the principle of election has no application to this case. The plaintiff states two separate and distinct causes of action, each based upon a different state of facts,--one, that the property be impressed with a trust; the other for foreclosure.
Appellant contends that an action which proceeds upon the theory that the title to the property is in the plaintiff, as alleged in the first cause here, is inconsistent with the one seeking foreclosure of the mortgage, which proceeds upon the theory that title is in the defendant. And that the assertion of a lien upon the property is inconsistent with the assertion of title thereto.
Causes are inconsistent so as to preclude their joinder in the same complaint, where to assert one is necessarily to negative the other; or to prove one is to destroy the other, as where one cause of action is an affirmance, and the other is disaffirmance, of a contract. Stuckey v. Metropolitan Life Ins. Co., 195 S.C. 358, 11 S.E.2d 391; McMahan v. McMahon, 122 S.C. 336, 115 S.E. 293, 26 A.L.R. 1295.
In applying the rule of inconsistency, a distinction is to be observed between cases where the complaint states...
To continue reading
Request your trial
-
Save Charleston Foundation v. Murray, 0502
...between two or more different and coexisting modes of procedure and relief afforded by law for the same injury. Tzouvelekas v. Tzouvelekas, 206 S.C. 90, 33 S.E.2d 73 (1945); Walker v. McDonald, 136 S.C. 231, 134 S.E. 222 (1926); Boardman v. Lovett Enterprises, Inc., 283 S.C. 425, 323 S.E.2d......
-
Harper v. Ethridge
...theories, or inconsistent remedies, could not be joined. McMahan v. McMahon, 122 S.C. 336, 115 S.E. 293 (1922); Tzouvelekas v. Tzouvelekas, 206 S.C. 90, 33 S.E.2d 73 (1945); Thompson v. Watts, 281 S.C. 504, 316 S.E.2d 393 (1984). Thus, a cause of action based on affirmance of a transaction ......