Dunlap v. Newman
Supreme Court of Alabama
Appeal from Clark Chancery Court. Heard before Hon. A. W. Dillakd. The bill in this case is set forth, in the report of the former appeal (47 Ala. 429). While sgid appeal was pending in this court, letters of administration were granted on the estate of Thomas Borroughs, and a suit at law was commenced against said administrator by complainant, on the same cause of action sought to be enforced by his bill.
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Appeal from Clark Chancery Court. Heard before Hon. A. W. Dillakd. The bill in this case is set forth, in the report of the former appeal (47 Ala. 429). While sgid appeal was pending in this court, letters of administration were granted on the estate of Thomas Borroughs, and a suit at law was commenced against said administrator by complainant, on the same cause of action sought to be enforced by his bill. When the suit on said .former appeal was remanded to the chancery court below, and' before any answer was filed, the defendants submitted a motion under Rule 108 of Chancery Practice (R. C.…
1Opinion of the CourtBrickell, C. J.
A motion to dismiss this appeal on the identical grounds on which the present motion is based was overruled at the last term of this court. The judgment then rendered is now conclusive, and we are without power to revise or to vacate it. Vandyke v. State, 22 Ala. 57. The present motion must therefore be refused.
The practice of compelling in equity an election between an action at common law and a bill in chancery, founded on the same claim or demand, is of great antiquity. It is thus stated in Lord Bacon’s 18th Ordinance : “ Double vexation is not to be admitted, but if the party sue for the…
2Cases cited4 opinions
- Planters' & Merchants' Bank of Mobile v. WillisSupreme Court of Alabama · 1843
- Planters & Merchants' Bank of Mobile v. WalkerSupreme Court of Alabama · 1845
- Van Dyke v. StateSupreme Court of Alabama · 1853
- Kemp v. CoxeSupreme Court of Alabama · 1848
3Cited by3 opinions
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- Fleming v. CourtenaySupreme Judicial Court of Maine · 1901
- Roman v. DimmickSupreme Court of Alabama · 1898