2020 Georgia Code
Title 9 - Civil Practice
Chapter 2 - Actions Generally
Article 1 - General Provisions
§ 9-2-4. Pursuit of Consistent or Inconsistent Remedies

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.

(Civil Code 1895, § 4945; Civil Code 1910, § 5522; Code 1933, § 3-114; Ga. L. 1967, p. 226, § 45.)

- For article discussing origin and validity of Georgia statute concerning election of remedies, see 14 Ga. L. Rev. 239 (1980). For article, "Res Judicata and Collateral Estoppel: New Defenses in Construction Litigation?," see 21 Ga. St. B.J. 108 (1985).

Constitutionality, see Douglas County v. Abercrombie, 226 Ga. 39, 172 S.E.2d 419 (1970).

- This section is addressed to satisfaction of different claims and its legislative history would seem to indicate that it was amended in 1967 to accommodate the pursuit of inconsistent remedies envisioned in the Civil Practice Act of 1966. Liberty Nat'l Bank & Trust Co. v. Diamond, 231 Ga. 321, 201 S.E.2d 400 (1973).

- Homeowners lacked standing to appeal consent orders entered by the director of the Environmental Protection Division of the Department of Natural Resources until the director sought to enforce them, but the homeowners were authorized to sue those directly responsible for polluting their property, irrespective of their right of access to the courts; hence, the underlying intent of O.C.G.A. § 12-2-2(c)(3)(B) was to preclude such attacks on the director's exercise of administrative authority to determine the scope of remedial measures set forth in consent orders issued under the Georgia Hazardous Site Response Act, O.C.G.A. § 12-8-90 et seq. Couch v. Parker, 280 Ga. 580, 630 S.E.2d 364 (2006).

§ 9-2-5 on this section. - While former Code 1933, § 3-114 (see now O.C.G.A. § 9-2-4) provided a general remedy for a plaintiff to obtain satisfaction by using consistent or inconsistent remedies against one or more defendants until a judgment was satisfied, former Code 1933, §§ 3-601 and 3-605 (see now O.C.G.A. § 9-2-5) provided a defendant with a specific defense against a plaintiff who came within its parameters and will prevail over the general terms of former Code 1933, § 3-114, if all of the conditions thereof were satisfied. Cooper v. Public Fin. Corp., 146 Ga. App. 250, 246 S.E.2d 684 (1978).

This section does not apply to petition for declaratory judgment. Kiker v. Hefner, 119 Ga. App. 629, 168 S.E.2d 637 (1969) ??? (see O.C.G.A. § 9-2-4).

Former requirement of consistency of remedies is no longer of force in this state. Cox v. Travelers Ins. Co., 228 Ga. 498, 186 S.E.2d 748 (1972).

Doctrine of election of remedies (set forth in this section prior to 1967 amendment) is procedural and remedial in nature, and as against contention that a litigant has chosen a prior inconsistent remedy, the law in effect at the time the order is entered up must be applied. Douglas County v. Abercrombie, 119 Ga. App. 727, 168 S.E.2d 870 (1969).

- Inconsistency in the remedies sought is not the determinative factor in whether or not the bringing of a prior suit bars institution of a later one; whether or not a remedy has been pursued to satisfaction controls. Adams v. Cox, 152 Ga. App. 376, 262 S.E.2d 634 (1979).

- O.C.G.A. § 9-2-4 prevents double recovery, not joint liability. Olden Camera & Lens Co. v. White, 179 Ga. App. 728, 347 S.E.2d 696 (1986); Green v. Thompson, 208 Ga. App. 609, 431 S.E.2d 390 (1993).

- Judgment against one of two joint and several obligors, which has never been satisfied, is no bar to a suit against the other. W.T. Rawleigh Co. v. Burkhalter, 59 Ga. App. 514, 1 S.E.2d 609 (1939).

- Merely obtaining a default judgment against one party does not constitute an election between two defendants who the plaintiff alleges are jointly and severally liable to it. Spalding Ford Lincoln-Mercury, Inc. v. Turner Broadcasting Sys., 202 Ga. App. 505, 415 S.E.2d 26 (1992).

- When the judgment to which defendants claim a benefit under res judicata was rendered against their principal, that judgment represents a final adjudication of the principal's vicarious liability for such damage as plaintiff incurred. Since that judgment has been satisfied, plaintiff cannot thereafter set up the same cause of action against another whom the plaintiff had the election of suing in the first place. Nannis Terpening & Assocs. v. Mark Smith Constr. Co., 171 Ga. App. 111, 318 S.E.2d 89 (1984).

- Settlement in which plaintiff, a lender, agrees to finance part of the settlement and files a satisfaction of judgment to that effect, serves as a bar to pursuit of further recovery from another defendant. Saunders, Stuckey & Mullis, Inc. v. Citizens Bank & Trust Co., 265 Ga. 453, 458 S.E.2d 337 (1995).

Superior court did not err in reversing the decision of the Georgia Department of Revenue that a corporate officer was liable for a restaurant's sales and use taxes pursuant to O.C.G.A. § 48-2-52 because the release of and refund payment to the majority owner of the restaurant operated as a release of the officer; under O.C.G.A. § 13-1-13, by voluntarily paying the owner a settlement amount with full awareness of any potential joint claim it had against the officer, the Department forfeited any right the Department had to recoup from the officer the payment made to the owner. Ga. Dep't of Revenue v. Moore, 317 Ga. App. 31, 730 S.E.2d 671 (2012).

Suit against wrong person for collection of excess in rents pursuant to the former federal Housing and Rent Act of 1947, and a judgment therein, would not preclude plaintiffs from seeking a similar judgment against the real owner of the property. Williams v. Higgason, 205 Ga. 349, 53 S.E.2d 473 (1949).

Complaint seeking injunctive relief against county corporation is not subject to dismissal because of pendency of mandamus action in another county against the corporation and its president. Tallant v. Executive Equities, Inc., 230 Ga. 172, 195 S.E.2d 904 (1973).

- Mere pendency of the former action for divorce wherein wife sought support for the child from husband does not preclude, as a matter of law, the subsequent prosecution of an abandonment action to adjudicate the question of defendant-third party's obligation for support of the same child. Foster v. State, 157 Ga. App. 554, 278 S.E.2d 136 (1981).

- When a settlement agreement is incorporated into a final decree of divorce, a suit seeking damages for the violation of its terms need not be initiated solely upon the decree, but an action ex contractu may be maintained due to a breach of the settlement agreement. Gray v. Higgins, 205 Ga. App. 52, 421 S.E.2d 341 (1992).

It is not an admission to allege in different actions against joint tort-feasors that each defendant's negligence was the proximate cause of the incident as there may be more than one proximate cause. Church's Fried Chicken, Inc. v. Lewis, 150 Ga. App. 154, 256 S.E.2d 916 (1979).

- Denial of a motion to dismiss is not error although the opposing party has already obtained a judgment against the other defendants in the case where the defendants are not joint defendants, the claims against the various defendants being based on different theories and not alleging any form of joint liability. Ale-8-One of Am., Inc. v. Graphicolor Servs., Inc., 166 Ga. App. 506, 305 S.E.2d 14 (1983).

Plaintiff's right to pursue different remedies ends when the plaintiff obtains full satisfaction from one source. McLendon Bros. v. Finch, 2 Ga. App. 421, 58 S.E. 690 (1907).

- Once a plaintiff has obtained satisfaction from one party one cannot pursue another party for the same damages under another theory completely contradictory and inconsistent with the contentions made in the first suit. Kelly v. Chrysler Corp., 129 Ga. App. 447, 199 S.E.2d 856 (1973).

After a suit has been prosecuted to judgment, or a satisfaction obtained, plaintiff cannot bring a second action disproving facts relied upon in establishing the first. Gilmore v. Fulton-DeKalb Hosp. Auth., 132 Ga. App. 879, 209 S.E.2d 676 (1974).

Presumption of full satisfaction arises from settlement with joint tort-feasor, but such a presumption does not obtain when both the acts and their consequences are separable. Gilmore v. Fulton-DeKalb Hosp. Auth., 132 Ga. App. 879, 209 S.E.2d 676 (1974).

When separate and concurring acts of negligence cause a single injury either or both may be pursued until a satisfaction, settlement, release, or accord and satisfaction is obtained from some, but this will end the right of action against all. Gilmore v. Fulton-DeKalb Hosp. Auth., 132 Ga. App. 879, 209 S.E.2d 676 (1974).

- Although a plaintiff may pursue any number of consistent or inconsistent remedies against the same person until a plaintiff shall obtain a satisfaction, the plaintiff may not proceed with two lawsuits and recover twice from the same defendant merely by denominating one action a tort and the other a breach of contract. Bell v. Sigal, 129 Ga. App. 249, 199 S.E.2d 355 (1973).

- While claimant or counterclaimant is not required to make an election between inconsistent remedies prior to the verdict, a party must make an election prior to the formulation and entry of judgment as every judgment must be certain and definite as to the amount thereof. UIV Corp. v. Oswald, 139 Ga. App. 697, 229 S.E.2d 512 (1976) (action seeking recovery on tort and contract grounds for repossession and sale of collateral).

Since an election between inconsistent remedies must be made at some point, it is better, at least in the case of a verdict in a single lawsuit for inconsistent items of recovery, to require the election to be made prior to judgment. UIV Corp. v. Oswald, 139 Ga. App. 697, 229 S.E.2d 512 (1976).

Application of an economic loss analysis by the trial court was proper in an action by an insured mortgagee against homeowner's insurer for the face amount of a policy after a fire. Owens v. Georgia Underwriting Ass'n, 223 Ga. App. 29, 476 S.E.2d 810 (1996).

- Grant of summary judgment on a breach of warranty claim did not preclude party from pursuing at trial the alternative theory of negligent construction as this course of action arises in tort and exists independently of any claim for breach of contract. Fussell v. Carl E. Jones Dev. Co., 207 Ga. App. 521, 428 S.E.2d 426 (1993).

- For discussion on applicability of O.C.G.A. § 9-2-4 to arbitration proceedings, see French v. Jinright & Ryan, 735 F.2d 433 (11th Cir. 1984).

Cited in Ashley v. Cook, 109 Ga. 653, 35 S.E. 89 (1900); Georgia Mills & Elevator Co. v. Clarke, 112 Ga. 253, 37 S.E. 414 (1900); Ray v. Pitman, 119 Ga. 678, 46 S.E. 849 (1904); Clark v. Havard, 122 Ga. 273, 50 S.E. 108 (1905); Board of Educ. v. Day, 128 Ga. 156, 57 S.E. 359 (1907); Prince v. Wood, 23 Ga. App. 56, 97 S.E. 457 (1918); Hotel Equip. Co. v. Liddell, 32 Ga. App. 590, 124 S.E. 92 (1924); Georgia Nat'l Bank v. Fry, 32 Ga. App. 695, 124 S.E. 542 (1924); Chapple v. Hight, 161 Ga. 629, 131 S.E. 505 (1926); Nix v. Citizens Bank, 35 Ga. App. 55, 132 S.E. 249 (1926); Jones v. Carter Elec. Co., 164 Ga. 44, 137 S.E. 624 (1927); Equitable Life Assurance Soc'y v. Pattillo, 37 Ga. App. 398, 140 S.E. 403 (1927); Allen v. Landers, 39 Ga. App. 264, 144 S.E. 796 (1929); Talmadge v. McDonald, 44 Ga. App. 728, 162 S.E. 856 (1932); Personal Fin. Co. v. Evans, 45 Ga. App. 54, 163 S.E. 252 (1932); Dover v. Young, 45 Ga. App. 457, 165 S.E. 325 (1932); Shadburn Banking Co. v. Streetman, 180 Ga. 500, 179 S.E. 377 (1935); Herrington v. Hamilton, 51 Ga. App. 741, 181 S.E. 592 (1935); W.T. Rawleigh Co. v. Burkhalter, 59 Ga. App. 514, 1 S.E.2d 609 (1939); Grizzel v. Grizzel, 190 Ga. 219, 9 S.E.2d 247 (1940); Belle Isle v. Moore, 190 Ga. 881, 10 S.E.2d 923 (1940); Beard v. Beard, 197 Ga. 487, 29 S.E.2d 595 (1944); Morris Plan Bank v. Simmons, 201 Ga. 157, 39 S.E.2d 166 (1946); Williams v. Kelley, 78 Ga. App. 699, 51 S.E.2d 696 (1949); Ashcraft v. Marsh, 81 Ga. App. 466, 59 S.E.2d 333 (1950); Atlantic Coast Line R.R. v. Strickland, 87 Ga. App. 596, 74 S.E.2d 897 (1953); Bacon v. Winter, 118 Ga. App. 358, 163 S.E.2d 890 (1968); Newby v. Maxwell, 121 Ga. App. 18, 172 S.E.2d 458 (1970); Rowe v. Citizens & S. Nat'l Bank, 129 Ga. App. 251, 199 S.E.2d 319 (1973); Howell v. Ayers, 129 Ga. App. 899, 202 S.E.2d 189 (1973); Trollinger v. Magbee Lumber Co., 132 Ga. App. 225, 207 S.E.2d 701 (1974); Townsend v. Orkin Exterminating Co., 132 Ga. App. 740, 209 S.E.2d 24 (1974); Latex Filler & Chem. Co. v. Chapman, 139 Ga. App. 382, 228 S.E.2d 312 (1976); Mattair v. St. Joseph's Hosp., 141 Ga. App. 597, 234 S.E.2d 537 (1977); Mickel v. Pickett, 241 Ga. 528, 247 S.E.2d 82 (1978); Gregson & Assocs. v. Webb, Young, Daniel & Murphy, P.C., 243 Ga. 53, 252 S.E.2d 482 (1979); Maxey v. Hospital Auth., 245 Ga. 480, 265 S.E.2d 779 (1980); Sheppard v. Yara Eng'g Corp., 248 Ga. 147, 281 S.E.2d 586 (1981); Hines v. Good Housekeeping Shop, 161 Ga. App. 318, 291 S.E.2d 238 (1982); National Carloading Corp. v. Security Van Lines, 164 Ga. App. 850, 297 S.E.2d 740 (1982); National City Bank v. Busbin, 175 Ga. App. 103, 332 S.E.2d 678 (1985); Sanders v. Brown, 178 Ga. App. 447, 343 S.E.2d 722 (1986); Overstreet v. Georgia Farm Bureau Mut. Ins. Co., 182 Ga. App. 415, 355 S.E.2d 744 (1987); Griffith v. First Fed. Sav. Bank, 208 Ga. App. 863, 432 S.E.2d 606 (1993); Vivid Invs., Inc. v. Best W. Inn-Forsyth, Ltd., 991 F.2d 690 (11th Cir. 1993); Citizens Bank & Trust Co. v. Saunders, Stuckey & Mullis, Inc., 214 Ga. App. 333, 447 S.E.2d 632 (1994); St. Paul Fire & Marine Ins. Co. v. Clark, 255 Ga. App. 14, 566 S.E.2d 2 (2002).

RESEARCH REFERENCES

Am. Jur. 2d.

- 1 Am. Jur. 2d, Actions, §§ 26, 27, 99. 25 Am. Jur. 2d, Election of Remedies, § 7 et seq.

- 1 C.J.S., Actions, §§ 47, 56, 79. 28 C.J.S., Election of Remedies, § 1 et seq.

- Election of remedies by owner against public authority or corporation having power of eminent domain which unauthorizedly enters land without instituting valid eminent domain proceedings, 101 A.L.R. 373.

Doctrine of election of remedies as applicable where remedies are pursued against different persons, 116 A.L.R. 601.

Effect of action as an election of remedy or choice of substantive rights in case of fraud in sale of property, 123 A.L.R. 378.

Application for, or receipt of, unemployment compensation benefits as affecting claim for workmen's compensation, 96 A.L.R.2d 941.