Bacon v. Winter

118 Ga. App. 358 (1968)

163 S.E.2d 890

BACON v. WINTER.

43798.

Court of Appeals of Georgia.

Submitted July 2, 1968.

Decided September 3, 1968.

Rehearing Denied September 18, 1968.

Oze R. Horton, for appellant.

Smith, Spears & Sears, Virgil H. Smith, for appellee.

HALL, Judge.

The plaintiff sued the defendant in trover for a 1956 Great Dane produce van trailer. The defendant appeals from an adverse money judgment.

1. The action and the defensive pleadings were filed before the Civil Practice Act became effective. (Ga. L. 1966, p. 609, as amended by Ga. Laws 1967, pp. 226, 250). After the Act became effective the court decided not to hear the demurrers. The appellant's enumeration of error on this decision is without merit. Lloyd Industries v. O'Neal Steel, 117 Ga. App. 328 (160 SE2d 433).

2. The trial court did not err in overruling appellant's motion to quash the process and service. Civil Practice Act, supra, Code Ann. §§ 81A-104 (b), 81A-108 (a); former Code § 81-220. It does not appear that the process issued was not in accordance with law or with the prayer of the petition.

3. Prior to the Civil Practice Act, the mere commencement of *359 any proceeding to enforce one remedial right was such a decisive act as to constitute a conclusive election of remedies which barred the subsequent prosecution of inconsistent remedial rights. Board of Educ. of Glynn County v. Day, 128 Ga. 156, 164 (57 SE 359). However, under the new Act, "A plaintiff may pursue any number of consistent or inconsistent remedies against the same person or different persons until he shall obtain a satisfaction from some of them." (Emphasis supplied). Ga. L. 1967, pp. 226, 247 (Code Ann. § 3-114). See also Hill v. Willis, 224 Ga. 263 (1) (161 SE2d 281); Hirsch's v. Adams, 117 Ga. App. 847 (162 SE2d 243). The trial court did not err in overruling appellant's motion to dismiss the action.

4. The remaining enumerations of error are insufficient under Rule 17 (c). Rules of the Court of Appeals, 111 Ga. App. 891.

Judgment affirmed. Bell, P. J., and Quillian, J., concur.