O'Byrne v. Cregier , 1913 Ill. App. LEXIS 314 ( 1913 )

Mr. Justice Brown

delivered the opinion of tne court.

The defendant relies to sustain his judgment in this case on the fact that by stipulation it appears that “the property recovered for” (not, as the abstract says, “the property recovered”) “in the attachment suit, and the diamond sought to be recovered in this action were taken at the same time from the possession of. the plaintiff in this suit and constitute one and the same act. ’ ’

This is very had English. Various pieces of jewelry “cannot constitute one and the same act.” The statement of the alias replevin writ that Merton is the property of affiant is also subject to verbal criticism.

However, we suppose we know what is meant, although it seems strange that there should be an admission by-stipulation that the diamond in question was taken at any time from the plaintiff’s possession, since the defendant Merton, on oath, as the record shows, asserts that he bought it in Pittsburgh in the same setting in which it now is.

But in the difference between an admission that the “property recovered” and one that the “property recovered for” in the attachment suit was taken from the plaintiff, lies a suggestion of the difficulty in this case, which we find, as Judge Dillon found Sweeny v. Daugherty, 23 Iowa, 291, not entirely easy to decide on authority.

If the “attachment suit” against Merton had been a replevin suit, and if other diamonds of articles of jewelry had been recovered, and this diamond being still in Merton’s possession had not been claimed by the plaintiff in that replevin suit, there would be no difficulty whatever in the present case.

Merton having by a single tortious act taken several articles, could stand, as the Supreme Judicial Court of Massachusetts in Bennett v. Hood, 1 Allen 47, said the defendants in that case could, on the maxim “Nemo debet bis vexari pro una et eadem causa,” and say that he could not be a second time sued for a single and indivisible act.

But this is by no means such a simple case.

Suppose Merton had stolen from the plaintiff four diamonds and given one to A., one to B. and one to C. and retained the fourth. Could not the plaintiff have brought four replevin suits, one against Merton, one against A., one against B. and one against C., and recovered in each case the diamond itself, if she had proved property? And if Merton had sold the fourth diamond to a person unknown, so that it could not be traced, could she not in addition to, and without endangering the three replevin suits against A., B. and C., and instead of a replevin suit against Merton, bring a suit in trover against him and secure a money judgment for the value of the diamond he had so converted? And would it make any difference if she brought this trover suit against Merton for the value of the fourth diamond before she brought the replevin suits for the others which she could locate? And if the suit in replevin against A. failed because it was proved that before it was brought A. had, without the knowledge of the plaintiff, returned to Merton the diamond given to him, could not the plaintiff seek that diamond by a replevin suit against Merton, notwithstanding she had already sued him in trover for the value of one? And if he would not give it up on the writ, could she not add a trover count to the declaration in replevin and recover on that?

It is not necessary to answer these questions, but they suggest other questions that must be answered in this case.

When the plaintiff sued Merton in the attachment suit for money damages, she confined her claim to diamonds and other jewelry “which he had converted into money,” as well as “taken unlawfully from her possession. ’ ’ At that time the diamond which she is now: suing for was not in Merton’s possession, but in that of Cregier as an officer of the law. Was she obliged to include its value in her claim against Merton and then on recovery pass the title to him and foreclose herself from recovery of the diamond itself? She thought not evidently, for she did not include its value in her claim. Nor do we think so. The diamond might have had a sentimental value for her. She may have preferred it very much to its money value.

When the custody of Cregier of the diamond ceased to he the custody of the law, she sued him in replevin. We think she had that right. When he came in and plead in the informal way provided for in the practice of the Municipal Court, that he was a stakeholder and Merton claimed the property, she added Merton as a codefendant. We think she had that right also, and that her former suit in trover against him for other property was no bar. When the property was withheld on the writ, she filed what takes the place in the Municipal Court of a count in trover against both defendants, and we. think this foreclosed her prosecuting the suit no more than did her former steps in it. We find nothing in serious contradiction in the cases cited to us to this conclusion which justice and right reason seem to demand. On the contrary, however, the whole tenor of the reasoning of Judge Dillon in Sweeny v. Daugherty, supra, is in favor of it. As he said in that case, we can say in this:

“In reaching this conclusion the consideration has had weight with us that it is especially found that the former recovery relied on as a bar ‘did not include the property herein sued for,’ so that the defense is more technical than meritorious. And the further consideration has influenced us, that the tendency of modern decisions is strongly, and we think wisely, in the direction of holding nothing to be barred except the precise matters which were involved and adjudicated in the first action.”

Although not deciding the question, the opinion in Bennett v. Hood, supra, intimates strongly that in a supposititious case, which we think is analogous to the one actually at bar, the plaintiff might maintain two separate actions.

The judgment of the Municipal Court is reversed and the cause remanded to that court for adjudication on the merits.

Reversed and remcmded.

Mr. Justice Baker dissents.