Kapischki v. Koch

Mr. Justice Boggs delivered the opinion of the court: The pleas in abatement having been withdrawn with the consent of the appellant, and the cause having" been submitted without objection upon the issues raised by the pleas of not guilty, it is unnecessary to consider as to the correctness of the rulings of the court on the motion to strike the pleas in abatement from the files, in allowing such pleas to be amended, and as to the sufficiency of a demurrer to a replication to those pleas. The unauthorized seizure and retention of the goods vested appellant with thp right to institute an action in trespass, in which he could recover compensatory damages, and, if the evidence disclosed a proper case, vindictive damages also, or an action on the replevin bond, in which he could recover compensatory damag'es but not exemplary or vindictive damag'es. Each of these remedies proceeds upon the same cause of action, and the remedies were consistent and concurrent. While different remedies were available to the appellant, the cause of action was the same and was an entirety, and could not be divided into separate and distinct claims and both remedies pursued. The appellant was required to elect his remedy, and could not split his right to recover damages and maintain two actions against the appellees upon the same cause of action. (Karr v. Barstow, 24 Ill. 581; Stier v. Harms, 154 id. 476; 1 Am. & Eng. Ency. of Law, 184 c; 17 id. 204.) If he elected to prosecute an action on the replevin bond and recovered judgment thereon, and has received satisfaction thereof, he must be content therewith. Nor do we think the trial court erred in directing a peremptory finding for the appellees. Counsel for appellant admitted in open court appellant had prosecuted an action on the replevin bond to final judgment and that such judgment had been fully paid and discharged. When the- admission was made the court had before it for determination the question whether the proofs in behalf of the appellant (plaintiff) warranted the submission of the cause to the jury. The appellees had not offered any testimony, but under the plea of not guilty had the right to establish the facts so admitted as destructive of the right of appellant to recover. In actions on the case it is admissible, under the general issue, to give in evidence a former recovery, a satisfaction, or any other matter ex post facto which shows that the cause of action has been discharged. (City of Chicago v. Babcock, 143 Ill. 358.) We need not consider whether the same rule of pleading obtained at common law in actions of trespass, for the reason that all distinctions between the two forms of action have been abolished by statute in this State. The admission of counsel established facts which, under the pleadings, it was competent to consider, and which, if made prior to the motion which called upon the court to determine the sufficiency of the case in behalf of appellant, would, as matter of law, conclusively have operated to defeat recovery in the action. The effect was not different because the admission was made while the court had the motion under consideration. The court rightfully considered the admission of counsel as constituting part of the case as made by the appellant, and correctly ruled there could not legally be a finding in his favor by the jury. There is no force in the suggestion it did not appear from the admission but that the judgment upon the replevin bond had been entered after the institution of the action in trespass. A defense otherwise admissible under a plea of not guilty, in an action of trespass, is competent in evidence, though it arose after the suit was brought and was not specially pleaded either to the maintenance of the suit or puis darrein continuance. City of Chicago v. Babcock, supra. There is no error in the record. Judgment affirmed.