Palmer v. People, 111 Ill. App. 381 (1903)

Nov. 9, 1903 · Illinois Appellate Court

111 Ill. App. 381

Frank M. Palmer v. The People of the State of Illinois.

1. Cumulative remedies—when trespass and replevin are not. Where one has brought his action in replevin against another and has recovered possession of property, wrongfully taken, such person cannot subsequently successfully maintain an action of trespass against the same and another person for such wrongful act.

Action of trespass for the wrongful taking of personal property. Appeal from the Circuit Court of DeWitt County; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the May term, 1903.

Affirmed.

Opinion filed November 9, 1903.

Tipton & Tipton, -for appellant.

Arthur. F. Miller, State’s Attorney, for appellee.

Mr. Justice Baume

delivered the opinion of the court.

This is an action of trespass brought by appellant against appellees, to recover damages for taking, impounding and detaining two black heifers, the property of appellant. There was a verdict below of “ not guilty,” and judgment against appellant for costs, from which judgment he prosecutes this appeal.

The record shows that, prior to bringing this action in trespass appellant had brought his action in replevin against one or more of the appellees, and had recovered possession of the stock. A party who recovers in replevin, and gets a return of the property from one party, cannot after-wards bring suit against the same and another party in trespass for the wrongful taking of such property. Either remedy is adequate to afford him satisfaction, but he cannot pursue both. Kar v. Barstow, 24 Ill. 581; Kapischki v. Koch, 18Ó Ill. 44.

Substantial justice has been done by the judgment in this case, and it will be affirmed.

Affirmed.