Lester v. Fields

• Decision Date: 09 April 1935
• Docket Number: Case Number: 24833
• Citation: 43 P.2d 87,1935 OK 397,171 Okla. 442
• Parties: LESTER v. FIELDS
• Court: Oklahoma Supreme Court

1935 OK 397

43 P.2d 87

171 Okla. 442

LESTER v. FIELDS

Case Number: 24833

Supreme Court of Oklahoma

Decided: April 9, 1935

Syllabus

¶0 ELECTION OF REMEDIES--Filing Petition Seeking Inconsistent Remedies not Election.

The filing of a petition seeking two inconsistent remedies does not constitute an election to pursue either of them.

Appeal from District Court, Greer County; T. P. Clay, Judge.

Action by R. A. Lester against W. Fields (A. K. Key intervening). Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Percy Powers and Lester & Briggs, for plaintiff in error.

W. T. Jeter, for defendant in error.

PER CURIAM.

¶1 The parties bear the same relation here as they did in the lower court.

¶2 Plaintiff filed his petition alleging the execution by the defendant of a series of promissory notes in a transaction involving the purchase of certain machinery, which notes reserved title in the plaintiff to such machinery until the notes were paid, default in the payment of such notes, and prayed for a money judgment on the unpaid notes and for the possession of the machinery. The machinery was taken in replevin and restored to the defendant on his redelivery bond. Defendant demurred to the petition on the ground of misjoinder of causes of action, and the same was sustained by the court upon such ground, the order entered thereon reading, in part, as follows:

"It is therefore the order of the court that said demurrer be and the same is hereby sustained upon the ground that there is a misjoinder of action in said petition, to which action of the court the plaintiff excepts. It is further ordered that the plaintiff have ten days to elect which cause of action he will elect to prosecute."

¶3 Thereafter plaintiff filed his amended petition, which is complete in itself, and follows generally the allegations of the origin default, and the case was tried by the sion of the machinery. Defendant answered by way of general denial.

¶4 With the leave of the court, A. K. Key intervened, setting up his claim to the machinery in question, asserting that it was attached to real estate purchased by him from the defendant, without notice of the conditional sales contract, and that the plaintiff had elected by his original petition to treat the sale as complete and had waived any right to the possession of such property by said election. Plaintiff answered by general denial. The conditional sale notes in question were never filed for record, but evidence was introduced at the first trial that the intervener had actual notice of them prior to his purchase of the land on which the machinery was located.

¶5 When the case was called for trial, defendant did not appear and was adjudged in default, and the case was tried by the court as between the plaintiff and the intervener, the parties waived trial by jury. At the close of the trial, the court found in favor of the plaintiff and against the intervener. Said intervener filed his motion for new trial, which was sustained and a new trial granted. At the new trial, the parties stipulated that the evidence introduced at the former trial be reintroduced and considered. All additional testimony offered deals with the value of the machinery in question, except the original petition which was introduced in evidence, and the court then rendered judgment against the plaintiff and the intervener and in favor of the defendant. The intervener is apparently satisfied with the judgment against him.

¶6 The record and the briefs of each the plaintiff and defendant indicate that the determining question in the lower court and here is whether or not the prayer of the plaintiff's original petition for a money judgment on the notes, in addition to asking for possession of the property involved, constituted an election to consider his sale transaction as complete, and thereafter precluded him from seeking possession of the property. The lower court held at the second trial that such petition constituted such an election, since there was nothing else introduced at such second hearing to cause the judge to reverse his former position. That the two remedies are inconsistent cannot be questioned.

¶7 Upon the question of election of remedies, we find the following statement in Bancroft's Code Practice and Remedies, sec. 189:

"Many of the cases go to the extent of holding that the commencement of an action in pursuit of one remedy is a conclusive election by which the plaintiff is bound, and that he cannot, by dismissing such action before judgment, or by an amendment to his complaint, be permitted to pursue another and inconsistent remedy. * * * But the more reasonable rule, which has been adopted in a number of jurisdictions, is that the mere bringing of an action which is dismissed before final judgment, and in which no element of estoppel has arisen, that is, where no advantage has been gained or no detriment has been occasioned, is not an election. Mansfield v. Pickwick Stages, 191 Cal. 129, 215 P. 389; Brice v. Walker, 50 Cal. App. 49, 194 P. 721; Carson v. Greeley, 107 Neb. 609, 187 N.W. 47; Sauer v. Bradley, 87 Okla. 277, 210 P. 726; McIntosh v. Lynch, 78 Okla. 85. 188 P. 1079; Gridley, v. Ross, 37 Idaho 693, 217 P. 989; Barton v. Oklahoma, K. & M. R. Co., 96 Okla. 119, 220 P. 929; Gorman-Head Auto Co. v. Barrett, 78 Okla. 34, 188 P. 1083; Berry-Beall Dry Goods Co. v. Francis, 104 Okla. 81, 230 P. 496."

¶8 The general rule, supported by the great weight of authority, is stated in 20 Corpus Juris at page 29, as follows:

"While the decisions are not harmonious as to the effect of commencing an action to enforce one of two or more remedial rights arising out of the same facts, in the absence of mistake, or some other legal excuse, according to the weight of authority, the mere commencement of any proceeding to enforce one remedial right, in a court having jurisdiction to entertain such proceeding, is such a decisive act as constitutes a conclusive election, barring the subsequent prosecution of inconsistent remedial rights,"--yet it would appear that this rule applies where separate actions are filed to enforce one of two or more inconsistent remedies, since from the same authority it will be noted that even in those jurisdictions following the above rule:

"Where plaintiff alleges two inconsistent causes of action in the same complaint, there is no election as to either, but at the time of trial plaintiff may be required to elect between them." (20 C. J. 31, citing: Carabin v. Willhelm, 87 Wash. 52, 151 P. 87; National Granite Bank v. Tyndale, 179 Mass. 390, 60 N.E. 927; Whiteside v. Brawley, 152 Mass. 133, 24 N.E. 1088.)

¶9 In Bancroft, Code Practice & Remedies, sec. 189, at page 287, the same rule is stated as follows:

"But the filing of a complaint seeking two inconsistent remedies does not constitute an election to pursue either of them."

¶10 It should take no argument or authorities to show the wisdom and justice of this rule. As in the present case, the plaintiff has two remedies. He can pursue either, but he cannot have both. If we hold that the filing of his petition in which he sought both to be an election of remedies, who could determine which remedy he had there by elected to pursue? As a result, both remedies would be defeated. If the defendant were permitted to assert, as he has in the present case, that the prayer for a money judgment precludes recovery of the property, what would prevent a similar defense being interposed in a suit later filed to recover the unpaid face of the notes?

¶11 Nor are we unmindful of the fact that the first syllabus to the decision of this court in the case of Galbreath v. Mayo, 70 Okla. 252, 174 P. 517, reads:

"Where a sale of personal property is made in which the vendor retains the title to the property until the purchase price thereof is paid and takes notes from the purchaser for such purchase price, and upon default in the payment of said notes the vendor brings an action upon said notes, it is an election by the vendor to make such conditional sale absolute and defeats the rights of the vendor to maintain action of replevin for said personal property,"

--from which the defendant contends that this court has already taken the position that the mere institution of a suit upon the notes precludes recovery of the property. In that suit the plaintiff proceeded to judgment upon both remedies, and the question for determination in this court was whether or not, having so proceeded, an election resulted. In his opinion on the above cited case, the commissioner makes...