Elliott v. Collins

Peactice — Dismissal oe Action. — Under subdivision 1 of section 435, Revised Statutes, the plaintiff may dismiss at any time before a counterclaim has been made or affirmative relief sought by cross-eomplaint or answer of defendant. Pleadings. — Under the provisions of subdivision 2, section 4168, in actions ex contractu or ex delicto the pleader is required to make in his complaint a statement of the facts constituting the cause of action in ordinary and concise language. Election oe Remedies. — In order to apply the doctrine of election of remedies the party must actually have at his command inconsistent remedies. (Syllabus by the court.)

APPEAL from District Court, Nez Perces County. As the witnesses were material and necessary, and tbe trial set and commenced, and no dispute of these facts, the court erred in refusing to allow their fees. (Griffith v. Montandon, 4 Idaho, 75, 35 Pac. 704.) The claim that is resisted here is for witness fees for witnesses that never were sworn. And their attendance and presence was not material or necessary, and their fees were not necessary costs or disbursements to defendant, the case going off on a motion by defendant that could have been presented on April 10th, or any time between April 7th and April 10th before case was set. (Griffith v. Montandon, 4 Idaho, 75, 35 Pac. 705; Rev. Stats., sec. 4912.) Mr. Harrington was the first witness called by the plaintiffs. He originally lost logs sued for in this case. The court, too, would recognize that Harrington was plaintiffs’ first witness and case went off on motion. (Fanning v. Leviston, 93 Cal. 186, 28 Pac. 943.) Affidavit does not show that witnesses were actually in attendance, nor wherein their attendance was necessary in this. (Idaho Kev. Stats., sec. 6139.) This action was brought in the probate court of Nez Perces county, to recover the value of two hundred and four sawlogs alleged to have been wrongfully taken from Snake river by Collins, the respondent. Judgment in that court went in favor of the plaintiffs, when an appeal was taken to the district court by the defendant. When the cause was reached for trial in the district court, and a jury impaneled for the trial of the case, and a witness sworn on behalf of the plaintiff had answered a preliminary question, counsel for defendant objected to a certain question then put to the witness, on the ground of irrelevancy and incompetency, and on the ground that the plaintiff had already brought an action ex contractu for “a recovery on the same cause of action set out in this action, which is an action ex delicto or in trover and conversion,” and for that reason the court had no jurisdiction to hear any further evidence for or on behalf of the plaintiff; that the plaintiff, having, elected to proceed ex contractu, waived the wrong, and was barred from any other remedy — -which motion was sustained, and the cause of action dismissed. The record shows that the plaintiff brought an action against the defendant in the probate court of Nez Perces county to recover $200, alleged .to be due for certain logs sold and delivered to the defendant by plaintiff and one Harrington. That suit was brought on the twentieth day of January, 1897. A demurrer was interposed and argued and submitted to the court on the twenty-ninth day of December, 1897; and, before the court announced its decision on the demurrer, the plaintiff moved to have the suit dismissed, without prejudice to a new action, which motion was granted, and the action- dismissed. Thereupon this suit was commenced. In substance, it is alleged in the complaint as a first cause of action that one Jason M. Harrington owned certain sawlogs, and, while such logs were passing down Snake river, the defendant took possession of the same, and converted them to his own use, contrary to the form of the statute, and said Harrington’s damage in the sum of $275; that demand was made for the same, which was refused; that said claim was duly assigned to plaintiff prior to the commencement of the suit — and prays for judgment for $275. For a second cause of action, it is alleged that, while certain saw-logs of the plaintiff were passing down Snake river, the defendant forcibly took possession of and carried away sixty-eight logs,, of the value of $136, and converted them to his own use; that demand has been made on the defendant for the return of said logs, or the payment of their value, which was refused by the defendant.