Evans v. Citizens & Southern National Bank

Wyatt, Justice.

1. Under the facts appearing from the foregoing statement of facts, the first question presented is, whether or not the plaintiffs in error are barred from maintaining the instant suit by reason of their election to pursue an inconsistent remedy prior to the filing of this suit.

“The caveat filed by these plaintiffs in the court of ordinary was finally dismissed for want of prosecution, without a hearing on the merits. This court has more than once ruled that there need be no adjudication of the plaintiff’s rights in the prior proceeding in order to make available the defense of…