101 P. 617 | Kan. | 1909
The opinion of the court was delivered by
The only question presented is whether or not the holder of a chattel mortgage can proceed, by attachment to collect his debt without waiving the mortgage security.
It is elementary that two remedies which are inconsistent with each other can not be invoked at the same time. (7 Encyc. Pl. & Pr. 364; 15 Cyc. 262; Plow Co. v. Rodgers, 53 Kan. 743, 37 Pac. 111, 42 Am. St. Rep. 317; City of Larned v. Jordan, 55 Kan. 124, 39 Pac. 1030; National Bank v. National Bank, 57 Kan. 115, 45 Pac. 79; Bank v. Haskell County, 61 Kan. 785, 60 Pac. 1062.) It is equally elementary that all consistent remedies are freely open to the use of the litigant. This narrows the question to whether the two remedies
It has been held that the rule against the use of inconsistent remedies will not be applied to a litigant who begins an action upon a wrong theory, and after discovering his mistake dismisses the action without, prej udice and commences another upon a theory incon
Our attention has been called to the case of National Bank v. National Bank, 57 Kan. 115, 45 Pac. 79, as one in which this court held that an attaching creditor could not participate under a chattel mortgage given to it because it adopted the remedy of attachment, which, under the circumstances of that case, was held to be inconsistent with its rights under the mortgage. An ■examination of the facts of that case shows, however, that the inconsistency which caused the court to exclude the Illinois bank from taking any right under the mortgage was its conduct with reference thereto, rather than because of the form of the remedy. The mortgage was tendered to the Illinois bank and the Emporia bank jointly. The Emporia bank accepted the mortgage, but the Illinois bank repudiated it as fraudulent and void, and upon that ground attached the property covered by the mortgage. This created a contest between the two banks as to the validity of the mortgage. After five years’ litigation the mortgage was sustained. The Illinois bank was then willing to accept the security which it before repudiated and denounced as fraudulent. This litigation, the -court said, made the remedies by attachment and by mortgage in that case inconsistent with each other, ■and the rule relating to inconsistent remedies was applied. For this reason that case has no application here.
There is no inconsistency between the remedy by
The judgment of the district court is reversed, with direction to proceed in accordance with the views herein expressed.