Elliott v. Collins

• Decision Date: 30 November 1898
• Parties: ELLIOTT v. COLLINS
• Court: Idaho Supreme Court

55 P. 301

6 Idaho 266

ELLIOTT v. COLLINS

Supreme Court of Idaho

November 30, 1898

PRACTICE-DISMISSAL OF ACTION.-Under subdivision 1 of section 435, Revised Statutes, the plaintiff may dismiss at any time before a counterclaim has been made or affirmative relief sought by cross-complaint or answer of defendant.

PLEADINGS.-Under the provisions of subdivision 2, section 4168, in actions ex contractu or ex delicto the pleader is required to make in his complaint a statement of the facts constituting the cause of action in ordinary and concise language.

ELECTION OF REMEDIES.-In order to apply the doctrine of election of remedies the party must actually have at his command inconsistent remedies.

(Syllabus by the court.)

APPEAL from District Court, Nez Perces County.

Reversed and remanded. Costs of the appeal are awarded to the appellants.

James W. Reid, for Appellant.

As the witnesses were material and necessary, and the trial set and commenced, and no dispute of these facts, the court erred in refusing to allow their fees. (Griffith v Montandon, 4 Idaho 75, 35 P. 704.)

Eugene O'Neill, for Respondents.

The claim that is resisted here is for witness fees for witnesses that never were sworn. And their attendance and presence was not material or necessary, and their fees were not necessary costs or disbursements to defendant, the case going off on a motion by defendant that could have been presented on April 10th, or any time between April 7th and April 10th before case was set. (Griffith v. Montandon, 4 Idaho 75, 35 P. 705; Rev. Stats., sec. 4912.) Mr. Harrington was the first witness called by the plaintiffs. He originally lost logs sued for in this case. The court, too, would recognize that Harrington was plaintiffs' first witness and case went off on motion. (Fanning v. Leviston, 93 Cal. 186, 28 P. 943.) Affidavit does not show that witnesses were actually in attendance, nor wherein their attendance was necessary in this. (Idaho Rev. Stats., sec. 6139.)

This action was brought in the probate court of Nez Perces county to recover the value of two hundred and four sawlogs alleged to have been wrongfully taken from Snake river by Collins the respondent. Judgment in that court went in favor of the plaintiffs, when an appeal was taken to the district court by the defendant. When the cause was reached for trial in the district court, and a jury impaneled for the trial of the case, and a witness sworn on behalf of the plaintiff had answered a preliminary question, counsel for defendant objected to a certain question then put to the witness, on the ground of irrelevancy and incompetency, and on the ground that the plaintiff had already brought an action ex contractu for "a recovery on the same cause of action set out in this action, which is an action ex delicto or in trover and conversion," and for that reason the court had no jurisdiction to hear any further evidence for or on behalf of the plaintiff; that the plaintiff, having elected to proceed ex contractu, waived the wrong, and was barred from any other remedy--which motion was sustained, and the cause of action dismissed. The record shows that the plaintiff brought an action against the defendant in the probate court of Nez Perces county to recover $ 200, alleged to be due for certain logs sold and delivered to the defendant by plaintiff and one Harrington. That suit was brought on the twentieth day of January, 1897. A demurrer was interposed and argued and submitted to the court on the twenty-ninth day of December 1897; and,...