Steinbach v. Murphy

• Decision Date: 02 May 1910
• Citation: 128 S.W. 207,143 Mo. App. 537
• Parties: STEINBACH v. MURPHY et al.
• Court: Missouri Court of Appeals

128 S.W. 207

143 Mo. App. 537

STEINBACH v. MURPHY et al.

Springfield Court of Appeals. Missouri.

May 2, 1910.

1. ELECTION OF REMEDIES (§ 3) — APPLICATION OF DOCTRINE.

The doctrine of election of remedies, by which the pursuit of one remedy will exclude the pursuit of another, applies only where one has remedies inconsistent with each other, and not where he may have the right to bring successive suits of the same nature, and brings one of them.

2. ELECTION OF REMEDIES (§ 7) — COMMENCEMENT AND DISMISSAL OF SUIT.

Where a party has two remedies, the commencement of a suit under one and its dismissal before final judgment does not amount to such an election as will prevent his pursuing the other remedy.

3. LIMITATION OF ACTIONS (§ 130) — RUNNING OF STATUTE.

Plaintiff having a right to sue at once for an accounting on notice of an attempted forfeiture of his rights in a partnership, or to wait till termination of the time for which the partnership was formed, his commencement of a suit at once, which was dismissed before final judgment, did not start the statute of limitations running, so as to affect the time for bringing action after termination of the partnership.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Action by Christian Steinbach against James Murphy and others. Judgment for plaintiff. Defendants appeal. Affirmed.

Sapp & Wilson and Spencer, Grayston & Spencer, for appellants. R. A. Mooneyham and C. V. Buckley, for respondent.

COX, J.

Action for an accounting and settlement of partnership, and for recovery of moneys alleged to be due plaintiff thereunder. Trial by court, judgment for plaintiff for $4,747.52, and defendants have appealed.

This is a companion case to the case of Beller v. Murphy et al., 123 S. W. 1029, decided by this court, and the facts in this case are the same as the facts in that case, and the legal questions involved in this case are the same as in that with one addition only. In this case, the record shows that plaintiff at one time brought suit against the same defendants relating to the same subject-matter in the state of Kansas, which was dismissed before final judgment, and appellants in this case insist, as they did in the Beller Case, that the statute of limitations has run against this action, and that plaintiff's action is barred. This question was decided adversely to this contention in the Beller Case, and we adhere to the decision there rendered, but appellants now insist that the bringing of the suit in Kansas started the statute of limitations to running against this plaintiff, and as authority for this position quote from the case of Beller v. Murphy, supra, in which this court used this language: "* * * We, therefore, conclude that this plaintiff, upon receiving the notice of forfeiture from the Murphys, had two remedies. He could sue at once for an accounting, or he could wait until the expiration of the 10 years which the partnership was to continue, and then sue; not having commenced his action until the expiration of the 10 years the lease was to run, he has elected to pursue the latter remedy, and hence the...