Elliott v. Collins

SULLIVAN, C. J. (After Stating the Facts.) — -The question for decision is, Did the court err in entering judgment of' dismissal ? The respondent contends that in the first action the plaintiff elected to sue in assumpsit, and that he could not dismiss that action, and thereafter sue in tort. The trial court sustained this contention, and dismissed the suit. The first, suit was dismissed by the court without prejudice to another action on the motion of plaintiff. In that action the defendant had not answered. That being so, the plaintiff had a right to dismiss his suit at the time he did, under the provisions of subdivision 1 of section 4354 of the Revised Statutes. It appears from the record that the plaintiffs had but one remedy, and that was for the value of the logs. Subdivision 2, section 4168, requires the complaint to contain a statement of the facts constituting a cause of action in ordinary and concise language; and that is what was done in the complaint in this cause of action. In order to apply the doctrine of election of remedies, the party must actually have at command two inconsistent remedies. He must not only think he has them, but must in fact have them. (7 Am. & Eng. Ency. of Law, 364.) The judgment of the court below is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. Costs of the appeal are awarded to the appellants. Huston and Quarles, JJ., concur.