Herrington v. Hamilton

181 S.E. 592, 51 Ga. App. 741, 1935 Ga. App. LEXIS 457

Opinion

Stephens, J.

Two remedies are not inconsistent merely because a satisfaction under one would be a satisfaction under the other. The remedy of a creditor to recover on the debt against the debtor is consistent with the remedy of the creditor to recover against another person, as for money had and received, money entrusted to the latter by the creditor, which represents a sum of money which the debtor paid to the creditor upon the debt. In a suit by the creditor, in pursuit of the latter remedy, to recover as for money had and received, a plea in bar of recovery which set up the pendency of the suit by the creditor against the debtor to recover upon the debt, as having been an election by the plaintiff of an inconsistent remedy, was properly overruled; and the verdict and judgment afterward rendered for the plaintiff were not an illegal termination of the cause. (Code of 1933, § 3-114, Code of 1910, § 5522).

Judgment affirmed.

Jenkins, P. J., and Sutton, J., concur. Norman E. Fudge, for plaintiff in error. McFlreath & Scott, J. Lon Duckworth, contra.