Dyckman v. Sevatson
| Citation | 39 N.W. 73,39 Minn. 132 |
| Parties | Frank H. Dyckman v. Erick Sevatson |
| Decision Date | 17 August 1888 |
| Court | Minnesota Supreme Court |
Appeal by plaintiff from an order of the district court for Cottonwood county, Perkins, J., presiding, granting a new trial.
Order affirmed.
Geo. W Somerville, for appellant.
Redding & Lane, for respondent.
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 recovered 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 attachment was 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 seized, it will be presumed, as against him, that the writ was properly issued. He will not be heard to say, at least in the absence of proof, that his proceeding was unauthorized and of no legal effect.
It is a familiar principle that a person should not be allowed to avail himself of the advantages of inconsistent positions in respect to the same matter; and after one has voluntarily chosen and carried into effect an appropriate remedy, with knowledge of the facts and of his rights, this will, in general...
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