Paramore v. Commercial Nat. Bank

ST. PAUL, J. This is, in substance, the same case as our No. 29366, E. E. Paramore v. Continental Bank & Trust Co. et al., ante p. 774, 123 So. 321, decided this day. The parties plaintiff and defendants, are all the same, the demand is the same, in so far as plaintiff seeks a personal judgment against these defendants upon allegations substantially the same as in the other case; the only difference between the two cases being that in this case plaintiff sues as trustee instead of liquidator and seeks only a personal judgment against the defendants, without asking that he be recognized as liquidator or that his account as such be approved and the property sold to satisfy his claims for the advances made by him. The trial judge sustained a plea of estoppel filed by the defendants, and dismissed the suit, on the ground that the allegations of this petition were inconsistent with, and contradictory of, the allegations made by plaintiff in the other case. We think the judgment was correct. In the other case the plaintiff asked for, and succeeded in obtaining, his recognition as liquidator and the approval of his account as such, and judgment ordering the lands sold to satisfy his advances. In the present case the plaintiff changes his position from one of liquidator to one of trustee simply, and asks for a personal judgment against these defendants for the very same amounts recognized as being due him as liquidator, and to be satisfied out of the proceeds of the lands ordered sold. We think his position in this case is inconsistent with, and contrary to, his position in the other suit. The judgment appealed from is therefore affirmed. O’NIELL, O. J., absent, takes no part.