Dyckman v. Sevatson

• Decision Date: 17 August 1888
• Citation: 39 Minn. 132,39 N.W. 73
• Parties: DYCKMAN v SEVATSON.
• Court: Minnesota Supreme Court

39 Minn. 132

39 N.W. 73

DYCKMANvSEVATSON.

Supreme Court of Minnesota.

August 17, 1888.

(Syllabus by the Court.)

One who has voluntarily chosen and carried into effect an appropriate legal remedy, with knowledge of the facts, and of his rights, will not, in general, be allowed to afterwards resort to an inconsistent remedy, involving a contradiction of the grounds upon which he before proceeded.

This principle applied to the case of a mortgagee of chattels seeking to recover the property by virtue of his title as mortgagee; he having previously, and after the maturity of the mortgage, caused the property to be taken under an attachment for the mortgage debt.

Appeal from district court, Cottonwood county; PERKINS, Judge.

Action for the recovery of personal property, brought by Frank H. Dyckman, plaintiff and appellant, against E. Sevatson, defendant and respondent.

George W. Somerville, for appellant.

Redding & Laing, for respondent.

DICKINSON, J.

After the trial of this action, and a verdict for the plaintiff, the trial court granted a new trial, and the plaintiff appealed. The action is for the recovery of personal property. The property formerly belonged to one Erickson. The plaintiff rests his right to the property upon a chattel mortgage given by Erickson to one Smith, in September, 1885, to secure a promissory note payable one year after that date. The defendant's claim in respect to the property is under a subsequent chattel mortgage given by Erickson to one Ross in November, 1885. It appeared in the trial of this cause that in October, 1886, after the maturity of the prior mortgage, then held by the plaintiff, he commenced an action against the mortgagor, and the indorser of the note secured by the mortgage, to recover the amount of the same, in which action he procured a writ of attachment to be issued; and at his instance and under his instruction the mortgaged property in controversy was levied upon as the property of the mortgagor, Erickson. In that action the plaintiff rccovered judgment. It did not appear that anything further was done with this property in that action, nor how it was freed from the custody of the sheriff under the attachment. The question is here presented whether, by causing the property to be attached as the property of the mortgagor, the plaintiff did not elect a remedy upon grounds so inconsistent with his present claim of right to the property under his mortgage that the latter claim must be deemed to have been relinquished. A point is raised by the appellant founded upon the fact that the affidavit and bond upon which the writ of attachmentwas issued were not offered in evidence. This was not necessary for the purposes of the defendant in this case. The question to which the proof was directed was as to whether the plaintiff had elected to pursue a course inconsistent with the cause of action now relied upon. He having delivered the writ to the sheriff, and directed its execution, and having thus caused the property to be...