Altom v. Hawes

380 N.E.2d 7 (1978)

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Nature of the Case

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Facts

P filed a suit in replevin against Ds to recover certain household furniture. P got the rights to the furniture when P and her then-husband, Melvin Altom, entered into a separation agreement which provided that P was to have exclusive possession of the marital home and the household furniture and furnishings, except such items as the parties might agree would be Melvin Altom's. Melvin called D, a longtime friend, and asked if he wanted to buy some furniture. D went to the marital residence where he found Melvin Altom and Melvin's brother. D chose several items of furniture, agreed to pay the asking price of $1,500 and took the items away that same afternoon. Melvin gave him a bill of sale. D was aware that P and Melvin were having marital difficulties but was not aware of the separation agreement. P first filed suit for divorce. A decree was entered holding that Melvin had appropriated and sold P’s property. Judgment was entered against Melvin in the amount of $1,500. P had yet to collect when she filed suit for replevin against Ds. Ds filed a motion for summary judgment based on P's election of a remedy against Melvin. Ds motion was granted, and P appealed. P contends that the judgment against Melvin is unsatisfied and that the doctrine of election of remedies does not apply as the prior judgment and the instant replevin action are not inconsistent remedies.