104 Minn. 322 | Minn. | 1908
This is an appeal from the order of the district court of the county of St. Douis overruling the defendant’s demurrer to the reply of the plaintiff. The complaint alleged facts tending to show that plaintiff’s intestate was killed by reason of the alleged negligence of the defendant, that the plaintiff is the administratrix of the estate of the deceased, and that he left him surviving a widow and two minor children. The answer put in issue the alleged negligence of the defendant, and alleged, in effect, that Charles Jesmore was duly appointed administrator of the estate of the deceased, and as such settled with the defendant the claim against it, on account of the death of plaintiff’s intestate, for $300, and executed and delivered an absolute release thereof, and that two days thereafter a report of the settlement was made to the probate court of the proper county and was approved by such court; that after such settlement was made Jesmore resigned, and plaintiff was appointed administratrix de bonis non; that the plaintiff, as an individual and as guardian of the minor children of herself and her deceased husband, brought an action against Jesmore and the defendant herein to recover damages, on the ground that Jesmore, as administrator, and the defendant, made a fraudulent and collusive settlement of the claim of liability of the defendant for the death of the deceased; and, further, that the action was never brought to trial, but was dismissed. The reply to the defendant’s answer herein alleged facts which, if proven, would justify the conclusion that the settlement made by Jesmore, as administrator, and the defendant, was fraudulent. This prior action referred to in the defendant’s answer was never tried upon the merits, but was dismissed (see Aho v. Jesmore, 101 Minn. 449, 112 N. W. 538, 10 L. R. A. [N. S.] 998), and this action commenced by the administratrix de bonis non.
Two reasons are here urged by the defendant in support of its demurrer.- They are:
“Second. That the judgment and decree of the probate court,- authorizing said settlement, and approving, ratifying, and confirming the same, and the release given thereon, is final and conclusive in this action, and cannot be collaterally assailed.”
1. The doctrine of election of remedies is well settled in this state, and is to the effect following: Where a party has a right to choose one of two or more appropriate, but inconsistent, remedies, and with full knowledge of all of the facts and his rights makes a deliberate choice of one of them, he is bound by his election, and is estopped from again electing and resorting to the other remedy. Election of remedies differs from estoppel in its broadest sense in that it need not' be shown that the party invoking it will .suffer some material disadvantage unless his adversary be required to abide by his election. Pederson v. Christofferson, 97 Minn. 491, 106 N. W. 958. The facts alleged in the answer, and admitted by the reply, do not present a case of election. If a person other than the widow had been appointed administrator de bonis non and had brought this statutory action, it would be apparent that no claim, in reason, could be made that there had been any election of remedies by the plaintiff, for he never had but one remedy or cause of action. The fact that the widow of the deceased was appointed such -administrator, instead of a third person, and as such brought this action, does not change the legal aspect of the case in the least. The widow, in her own right and that of her children, could not maintain this action. Aho v. Jesmore, 101 Minn. 449, 112 N. W. 538, 10 L. R. A. (N. S.) 998. Therefore she could not elect to bring it, instead of the one she did bring.
It is true that a release, fairly obtained, for a valuable consideration, from the parties entitled to receive the damages recovered for the death of a person by the wrongful act or neglect of another, is a bar to an action by the personal representative of the deceased. Sykora v. Case Threshing Machine Co., 59 Minn. 130, 60 N. W. 1008. Such,
Counsel in this connection cites Fowler v. Bowery, 113 N. Y. 450, 21 N. E. 172, 4 L. R. A. 145, 10 Am. St. 479, Barker v. Barker, 14 Wis. 131, and Carter v. Gibson, 61 Neb. 207, 85 N. W. 45, 52 L. R. A. 468. The first case cited was simply this: E. died, leaving a deposit in the defendant bank, and plaintiff was appointed executor of. her will; but the executor of the will of J., her husband, presented the passbook to defendant and received the amount of the deposit. The plaintiff, learning of such payment, brought suit against the executor of J., for the money received by him, and recovered judgment therefor, and, being unable to collect it, brought an action against the bank for the deposit. The court held in the last action that the plaintiff had elected one of two inconsistent remedies which he had, was bound by his election, and could not recover. The second case was the application of the elementary rule that, if a trustee uses the trust funds to buy real estate in his own name, the cestui que trust has an election either to hold the trustee responsible for the money or follow it into the land, but he cannot do both. In the last case relied on it was held, following the familiar rule, that, if a cestui que trust takes judgment against the trustee for the purchase price of trust property wrongfully conveyed, he thereby ratifies the sale and waives his right to pursue the purchaser. It would seem, for the reason already suggested, that the cases cited are not here in point.
2. This brings us to the question whether the fact that the probate court made its order approving the alleged fraudulent settlement attempted to be made by Jesmore and the defendant is a bar to this action unless the order is set aside in some direct proceeding for that purpose. This question was not involved in the former appeal. Although the order of the probate court was made ex parte and without notice to the widow, yet, if the court had jurisdiction to make an order approving the settlement of the claim against the defendant, it may be conceded, for the purpose of this appeal, that the order could not be attacked collaterally. The probate court in this state has, by virtue of our state constitution (article 6, § 7), “jurisdiction over the estates of
It was held in the first case cited that a probate court had jurisdiction to appoint an administrator to prosecute the statutory action for the benefit of the widow (surviving spouse — R. D. 1905, § 4503) and next of kin, although the deceased left no property within the state and was not an inhabitant thereof. This was upon the ground that such cause of action would be deemed assets of the deceased to the extent of giving the probate court jurisdiction to appoint an administrator. It does not follow, from this conclusion, that the probate court has jurisdiction to direct a settlement of the cause of action, which vests in the administrator, when appointed, as trustee for the widow and next of kin, or affect one already made by approving it. The administrator, as trustee, then, had the right to settle and discharge the cause of action here in question without the approval of the court; and, having settled and released it, how could an order
Order affirmed.
