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Keywords

tortplaintiffdefendantappealtrialsummary judgmentdivorce
plaintiffdefendanthearingtrialmotionsummary judgmentadoptionmotion for summary judgment

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Altom v. Hawes, 63 Ill.App.3d 659, 380 N.E.2d 7, 20 Ill.Dec. 330

Facts

Janice Altom and her then-husband, Melvin Altom, entered into a separation agreement granting her exclusive possession of their household furnishings. Despite this agreement, Melvin sold certain items to Tracy Hawes, who was unaware of the separation agreement. After the divorce, a judgment was entered against Melvin for the value of the sold furnishings, but it remained uncollected. Janice then filed a replevin action against the Haweses to recover the furniture.

The evidence adduced at the sec. 4c hearing revealed that on or about February 10, 1976, the plaintiff, Janice Altom, and her then husband, Melvin Altom, entered into a separation agreement which provided that Janice Altom was to have exclusive possession of the marital home and of the household furniture and furnishings, except such items as the parties might agree would be Melvin Altom's.

Issue

Whether Janice Altom's replevin action against the buyers of her household furnishings was barred by the election of remedies doctrine after she had previously pursued a claim against her ex-husband.

Defendants contend that the granting of the motion for summary judgment was proper in that the plaintiff has elected her remedy in choosing to pursue her claim against Melvin Altom to judgment and may not seek a double recovery by now proceeding against them in replevin.

Rule

The election of remedies doctrine precludes a party from pursuing multiple inconsistent remedies, but it does not apply if the remedies are consistent or if the defendant has not materially changed their position in reliance on the plaintiff's prior action.

Simply stated, an election of remedies is the adoption of one of two or more coexisting remedies, with the effect of precluding a resort to the others.

Analysis

The court analyzed whether the remedies sought by Janice were inconsistent. It concluded that while she had obtained a judgment against Melvin for the tortious sale of her furniture, this did not preclude her from seeking the return of the furniture through replevin. The court emphasized that the buyer, Tracy Hawes, was not misled by Janice's prior action and had not changed his position based on it, thus allowing her to pursue both remedies.

Although we do not cite them here, many cases can be found which would sustain the granting of summary judgment upon these facts.

Conclusion

The Appellate Court reversed the summary judgment in favor of the defendants and remanded the case for trial on the replevin issue.

For the foregoing reasons, the summary judgment rendered in defendant's behalf is reversed and this cause remanded for trial on the replevin issue.

Who won?

Janice Altom prevailed in the appeal because the court found that her replevin action was not barred by the election of remedies doctrine.

The record reveals no threat of double recovery by plaintiff, no evidence that defendant was in any manner misled by plaintiff's conduct in filing Count II in its Florida suit, and no basis for application of res judicata.

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