Field v. Great W. Elevator Co.

• Decision Date: 26 April 1897
• Citation: 6 N.D. 424,71 N.W. 135
• Parties: FIELD et al. v. GREAT WESTERN ELEVATOR CO.
• Court: North Dakota Supreme Court

6 N.D. 424

71 N.W. 135

FIELD et al.

v.GREAT WESTERN ELEVATOR CO.

Supreme Court of North Dakota.

April 26, 1897.

Syllabus by the Court.

By appealing from a judgment of a county court to the district court, the appellant waives his right to appeal from such judgment to the supreme court, and such waiver is irrevocable.

Appeal from Ransom county court; Frank P. Allen, Judge.

Action by William H. Field and Clarence B. Wisner against the Great Western Elevator Company. Judgment for defendant, and plaintiffs appeal. Dismissed.Edward Engerud, for appellants. P. H. Rourke, for respondent.

CORLISS, C. J.

The motion to dismiss this appeal must be granted. The case was originally tried in the county court of Ransom county. The plaintiff in the action having been defeated in that court, he had before him, under the statute, either of two courses to pursue: he could appeal to the district court, or he could appeal to the supreme court. Rev. Codes, § 6591. But both of these remedies were not open to him. They are inconsistent. It is one of the very elements of the law that, when a suitor reaches the parting of the ways in the pursuit of inconsistent remedies, he must elect which road he will follow. The first step taken is an election, and the election, when made, is irrevocable. Elliott, App. Proc. § 149; 2 Enc. Pl. & Prac. 179, 180; 7 Enc. Pl. & Prac. 364; Wilson v. Roberts, 38 Neb. 206, 56 N. W. 787;Harvey v. Fink, 111 Ind. 249, 12 N. E. 396;Insurance Co. v. Routledge, 7 Ind. 25;Insurance Co. v. Carpenter, 85 Ind. 350, and cases cited. The plaintiff made his election to have his case reviewed by the district court by appealing to that court. After perfecting his appeal, he had it dismissed on his own motion. Whether he could thereafter have appealed again to the district court, if that dismissal had been without prejudice to his right to take a second appeal, it is unnecessary to decide. When he made his election to appeal to the district court, he took all the risks incident to an appeal to a higher tribunal; and if, because he discovered through some mistake in practice he was not in position to derive any benefit from the appeal, he voluntarily dismissed it, that can have no bearing on the question of election. After he had taken his appeal to the district court, he was in the same position that he would have occupied had there existed no statute whatever authorizing an appeal to the supreme court. When the former appeal in this case was dismissed on the ground stated in the opinion of the court (67 N. W. 147), we refrained from...