## Facts

- Janice L. Altom and her husband, Melvin Altom, executed a separation agreement giving Janice exclusive possession of the marital home and household furniture, except items the parties might agree belonged to Melvin.
- Melvin later sold several furniture items to Tracy Hawes for $1,500, delivered the items the same day, and provided a bill of sale.
- Hawes knew the Altoms were having marital difficulties but did not know of the separation agreement.
- Before entry of the divorce decree, Janice knew the Haweses possessed the furniture and had paid Melvin, and she did not then demand return of the property.
- In the divorce proceeding, the court found Melvin had wrongfully appropriated and sold furniture in violation of the separation agreement and entered a $1,500 money judgment for Janice against Melvin.
- The judgment against Melvin remained unsatisfied; Janice filed a replevin action against Tracy and Shirley Hawes seeking return of the furniture.
- After a preliminary hearing, the trial court found Janice made a prima facie showing of a superior right to the property and a probability of success.
- The trial court later granted the Haweses summary judgment, concluding Janice elected her remedy by obtaining the divorce money judgment, and it denied her motions to vacate and amend.

## Issues

1. Whether obtaining a money judgment against an ex-spouse for the value of household goods bars a later replevin action against third-party possessors under election of remedies or estoppel.
2. Whether the divorce judgment against the ex-spouse precludes the replevin action against third parties under res judicata or collateral estoppel.

## Decision

- The appellate court reversed the grant of summary judgment and remanded.
- The court held Janice was not barred from pursuing replevin against the Haweses despite the earlier money judgment against Melvin.
- The court found no basis to apply election of remedies as a strict bar and no showing of estoppel, double recovery, res judicata, or collateral estoppel.

## Legal Principles

- Election of remedies is disfavored as a rigid bar and is applied functionally as an estoppel doctrine.
- A later action is barred only when the plaintiff’s earlier choice misled the defendant or the defendant materially changed position in reliance on it, or when the second action creates a genuine risk of double recovery.
- An unsatisfied judgment against one party does not, by itself, preclude pursuit of another remedy against a different party arising from the same transaction.
- Preclusion generally requires identity (or privity) of parties and issues actually and necessarily determined; a divorce judgment between spouses does not automatically bind nonparties in later property litigation.

## Conclusion

The appellate court held that a spouse who obtained an uncollected divorce judgment for the value of sold household goods was not estopped from later suing third-party possessors in replevin, absent inconsistent remedies, detrimental reliance, or a real risk of double recovery, and it remanded for further proceedings.


Altom v. Hawes, 63 Ill. App. 3d 659, 380 N.E.2d 7 (Ill. App. Ct. 5th Dist. 1978)