Bailey v. O'Fallon

30 Colo. 419 | Colo. | 1902

Lead Opinion

Mr. Justice Gabbert

delivered the opinion of the court.

The character of this action appears from the statement in Bailey v. O’Fallon, ante p. 418. Plaintiff in error, defendant below, claimed that be was entitled to the possession of tbe mare until his charges for caring for her, as agent of the Colorado Humane Society, were discharged. The trial court rendered judgment in favor of the plaintiff, because, in his opinion, the law under which the defendant assumed to act was unconstitutional, and that when he took possession of the animal he was not the duly authorized agent of the Humane Society. Counsel for defendant contend the court erred in determining these questions. They are not necessarily involved, because, for another reason, the judgment must be affirmed, and we shall not pass upon them. The writ of replevin was sued out after defendant had taken steps to> sell the mare for the purpose of enforcing his lien. At the time he took these steps he knew that plaintiff was the owner of the animal. He did nothing more, however, in the way of giving notice of sale than by posting three notices of the time and place when and where it would occur. Sec. 114, Mills’ Ann. Stats., which designates how liens of the character claimed by defendant may be enforced, provides that, in addition to posting notices of sale, notice shall also be given the owner, if known. This latter notice the defendant failed to give, although he knew plaintiff was the owner of the animal. The statutes under which defendant assumed to act are in derogation of the common law, and must be strictly- construed and substantially followed. The authority of the defendant to sell for the purpose of enforcing his lien depended entirely upon a compliance with the statute relating to sale. When he undertook to act without such compliance, he exceeded his authority, so that, although all steps and acts upon his part may have been legal up to this point, his attempt to exercise an authority in a manner which the law does not recognize was a trespass which related back to the inception of the transaction, and rendered the whole proceeding void from the beginning. — Webber v. Hartman, 7 Colo., 13. On this proposition 9 Bacon’s Abridgment, 451, is cited in the above case, and quoted with approval, where it is said: “Where the law has given an authority, it seems reasonable that the law should, in order to secure such persons as are the objects thereof from abuse of the authority, when it is abused, make everything done void; and leave the abuser in the same situation as if he had done everything without any authority.”

Counsel for defendant contend the record discloses that plaintiff was fully apprised of the proceeding to sell. This may be true, but such information was not obtained in the manner provided by the statute, and besides, the authority of the defendant to sell rested not.upon the plaintiff’s knowledge of the sale, but upon the giving of such notice in the manner provided by the statute. It is also urged that the question of notice was not- raised by plaintiff below. If he were the party bringing the cause here for review, that would be material, but he is not, and is, therefore, not precluded from calling the attention of the court to any proposition presented by the record, from which it appears that the judgment below should not be disturbed. If a judgment' be correct, it will not be reversed merely because the reasons upon which it is based may not be sound, or were not involved. It is apparent from the record that the judgment must be affirmed, irrespective of the question of the constitutionality of the law or the agency of the plaintiff, and it is so ordered. .

Judgment affirmed.

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Dissenting Opinion

Mr. Justice Steele,

dissenting.

The doctrine announced in the opinion is, it seems to me, wholly inapplicable. In Webber v. Hartman, cited, the court held that if the taker-up of an estray uses the animal, he forfeits his claim to compensation, and that, although the original taking was lawful, the subsequent abuse of authority makes the taking a trespass. Here, the alleged abuse of authority relates not to the unlawful use of the impounded animal, but to an irregularity in giving notice of sale. It should be observed that a sale did not occur. The animal was taken under a writ of replevin before the expiration of the time fixed in the notice; and it is because the defendant failed to give personal notice of the sale, in addition to posting notice, as required by the statute, that he is denied any compensation for the care of the animal, and is declared to be a trespasser. It is. not claimed that there was unreasonable delay in making the sale.

I do not contend that one may ignore the provisions of the statute, nor that the sale need not be in strict accordance therewith, but I do contend that a false step taken in the proceeding to sell does not render the taking unlawful without regard to whether a sale has been made or not. It seems to me that one who undertakes to make a sale under this statute has the right h> remedy any defect in the notice at any time before sale; and that if, before the sale, he discovers an error in the notice, he may give a new notice.