— On Dеcember 2, 1911, C. Chesmore, since deceased, commenced this action for the possession of a $500 note рurporting to have been signed by him, alleging that his signature thereto was a forgery. Bond in the usual form was given. On or about January 28, 1912, the plaintiff died, and later, Anna Chesmore Lowrey, his wife, who has remarried, was appointed administratrix, and substituted as plaintiff.
On Mаrch 21, 1913, the defendant filed answer, admitting the formal allegations of plaintiff’s petition, and averring that the note in contrоversy was genuine, and of the value of $500, and that she was the absolute owner thereof at the time of the commencement of suit, and at the time of filing the answer. The defendant, however, prayed judgment for the value of the note, togеther with attorney fees and damages against plaintiff as
Tbe right of tbe defendant in a replevin actiоn, under Section 4178 of tbe Code, to elect to have an execution for the return of tbe specific propеrty, or for judgment for tbe value thereof, has been frequently sustained by this court. Rust v. Olson,
“A man may not take two contradictory positions; and, where he has two modes of redress, and the two are so inconsistent that the assertion of one involves the negation or repudiation of the other, his deliberate and settled choice of one, with knowledge or means of knowledge of such facts as would authorizе a resort to each, will preclude him thereafter from going back and electing again.”
The defendant had but one remedy for the collection of the note against the estate of C. Chesmore, and that was by filing a claim in probаte. She sought the allowance thereof as a claim of the first class, and filed her claim within six months after the death of Chesmore. Necessarily, she asserted ownership of the note. She was an involuntary party to the replevin suit, and had no control thereover. The option allowed by Section 4178 of the Code does not have the effect оf creating two concurrent, inconsistent remedies. The election to have judgment entered on the verdict agаinst the plaintiff and the sureties on the bond amounts to’nothing more than the exercise of a right conferred by statute, which need not be exercised until the issues have been determined by the jury, and the value of the specific property fixеd thereby. It goes to the form of the judgment to be entered, and not to the right of recovery. While the right to have an execution for the return of the specific property or a judgment for its value is a part of the remedy, it is no more thаn an alternative right, to be exercised after the controversy has been settled by the verdict. The defendant, by asking judgmеnt for the value of the property, following averments of ownership of the specific property, did not neсessarily elect to treat the property as having been converted by the plaintiff. After verdict was returned, counsel for defendant moved the court for judgment against the plaintiff and the sureties on the bond, for the value of the note as fixed by the verdict of the jury. Resistance was filed thereto by counsel for plaintiff, based upon defendant’s alleged election in filing the claim in probate claiming ownership of the note. The motion was, as already appears, sustained. It is our conclusion that the defendant did not, by filing a claim in probate, based upon the