ON REHEARING.
Jenkins, P. J.A motion for rehearing was granted in this case, for the reason that the ruling contained in the first division of the decision as it was originally expressed was based upon Board of Education v. Day, 128 Ga. 156 (supra). As was shown in the motion for rehearing, Mr. Justice Lumpkin made the statement that, strictly speaking, the doctrine of inconsistent remedies was not involved in that case, but that he dealt with the subject in that case because it was so nearly in point. He seems, however, to have actually applied the doctrine elaborated in the case decided. It was on the contention made by the motion that what was said in the Day case with reference to the election of remedies was merely obiter, that we desired to reconsider the doctrine as there enunciated and elaborated. It is true, as pointed out by the movant, that the courts have many times said in effect that it is a principle of law that, when a party assumes a certain position in a legal proceeding and succeeds in maintaining that position through a judgment of the court or through the acquiescence of the opposite party to his prejudice, he will not thereafter be permitted to assume as to the same subject-matter and against the same adversary a contrary position. See Ray v. Cruce, 21 Ga. App. 539, 541 (94 S. E. 899). As to the correctness of such a proposition, there can be no question. The question involved in the instant case, however, is as to whether an election was made upon the institution of an action which was not pursued to judgment, but which was nonsuited, with the result that the question involved in the former action was not thereby finally adjudicated, since the plaintiff, if she saw proper, might have renewed the same original action.
It is still our opinion that, under the Georgia authorities, it is not necessary, in order for an election of inconsistent remedies to be had, that the plaintiff shall succeed in maintaining his position *407through a judgment, or that the opposite party be prejudiced by the maintenance of the original action. The Day case has been cited approvingly fourteen times by the appellate courts of this State. The Supreme Court in Hardeman v. Ellis, 162 Ga. 664, 685 (supra) laid down the rule just as emphatically as did the decision in the Day case. In some few foreign jurisdictions a contrary rule is adopted. In this State, not only is it true, as has been often said, that, if a party with knowledge of the facts maintains his position until a judgment, or by his action prejudices the opposite party, he can. not thereafter assert a contrary position; but it is also true that he can not thus institute an action without making such an election as will prevent him from thereafter assuming a contrary and inconsistent position. This rule is not only set forth and elaborated in the Day case, but is plainly laid down as the rule in the additional cases cited in the present division of the syllabus.
Movant, in his motion for rehearing, reiterates his contention that the plea in abatement was defective in that it did not specifically allege that the plaintiff had actual knowledge or notice of the substantial facts at the time she instituted her first proceeding. This point was dealt with in the original decision, where it was said that it would be presumed that the plaintiff in the former action was cognizant of the facts pertaining to her case. Of course, as stated in the original decision, if the plea in abatement had contained any sort of statement indicating to the contrary, that is that the plaintiff in the former action was in ignorance of the essential facts involved, the ruling would be different. The rule here stated is sustained by authority. 20 C. J. 37, states it as follows: “Where a party sets up the defense of election of remedies, he makes a prima facie case by introducing the record of a former suit based upon an inconsistent theory, and in such case the burden is placed upon plaintiff to show that the election was made in ignorance of the facts concerning his right to adopt another remedy.”
Judgment adhered to.
Stephens and Sutton, JJ., concur.