Funk & Hardman v. Israel, 5 Iowa 438

Funk & Hardman v. Israel

5 Iowa 438 | Iowa | 1858

Lead Opinion

Stockton, J.*

At common law, the owner of a chattel might, by the action of replevin, take it from the possession of any person who unlawfully held it, unless it was in the custodyof the law. If wrongfully taken by virtue of legal process, the remedy of the owner was by action of trespass, or trover, against the officer; for the common law would not grant process to take fronfan officer, goods which he had taken by legal process already issued. Cromwell v. Owings, 7 Harr. & Johnson, 55; Ilsley v. Stubb, 5 Mass. 280. Our statute has, however, so far altered the common law, that a person entitledto the present possession of personal property, wrongfully detained from him, on making oath that the property was not taken from him by any legal process, or if so taken, that it was exempt from seizure by such process, may have the possession restored to him. Code, section 1995. The exemption contemplated by this section, extends only to the articles enumerated in sections 1898 and 1899 of the Code, and was intended for the benefit of the particular parties indicated. The articles so exempt, cannot be taken in execution, and if taken, their possession may be recovered under writ a of replevin, by the defendant in execution.

The averment of the plaintiffs’ petition is, that “although the property was taken from them by a pretended legal process, yet that the same was exempt from seizure by such process; and that the alleged cause of the seizure and detention thereof, is that the said property was kept by plaintiffs, for the purpose of being sold as intoxicating liquor, in violation of the provisions of the prohibitory liquor law, which alleged cause they aver to be untrue. The averment that the property was exempt from seizure, would have been sufficient under the Code, (section 1995,) had not the further fact been disclosed, that it was seized by defendant, as intoxicating liquor, by virtue of a search warrant issued under the provisions of the prohibitory liquor law. When *451proceedings are commenced under the “ act for the suppression of intemperance,” by the seizure of intoxicating liquors, alleged to be owned and kept for sale in violation of law, it is not competent for a party, to take the case away from the tribunal whose jurisdiction has attached, by instituting an action of replevin, and regaining possession of the liquors. He cannot so bring about a change of forum — he cannot so change a criminal, into a civil proceeding.

The prohibitory liquor law provides for the final hearing and adjudication of all causes originated under it. The officer to whom the warrant is delivered, is to execute it, and make return of his doings, and securely keep the liquors seized, until final action. Any person claiming an interest in the liquors seized, may appear before the justice, and show cause why they should not be adjudged forfeited, as, that they were not owned or kept with intent to be sold in violation of law. He may have a jury to try the issue; he may introduce testimony; he may appeal to a higher court, from any judgment of condemnation or forfeiture ; and if it is decided that the liquors seized, are not liable to be forfeited, he may have them, with the vessels in which they are contained, restored to the place where they were seized. To suffer a party, in an action of replevin, to take the liquors out of the hands of the officer seizing the same, would be an-interference with the administration of justice in criminal proceedings, and would defeat the whole object and intention of the prohibitory liquor law. Ey that law, the keeping of intoxicating liquors for sale, is prohibited; the liquors so kept, are declared a nuisance, and must be forfeited and destroyed. It is easy to perceive, that if they may be replevied out of the hands of the officer seizing them, there will be very few instances in which the object of the statute will be attained, by the destruction of the liquors kept for sale contrary to law. See Musgrave v. Hall, 40 Maine, 498.

In this view of the requirements of the law, we think *452the district court did not err in dismissing the suit, on the motion of the defendant. The plaintiffs showed by their petition, that they were not entitled to the relief sought in the action of replevin. The liquors were in the custody of the law, by virtue of process issued in a criminal proceeding, and were awaiting the action of the court under the law, by which it was to be ascertained, whether or not they were liable to be forfeited, and to a judgment that they be destroyed. While such proceedings are in pr ogress, the liquors are not the subject of an action of replevin. An attempt by the owners to regain their possession, by a writ of replevin, would, at common law, be deemed a contempt of the jurisdiction of the court issuing the warrant. Intoxicating liquoi-s, kept for sale in violation of law, are not regarded as property. They are outside of the protection of the law, and unless the party suing, avers and shows that they are in his possession with lawful intent, and that he has been illegally deprived of the same, no action can be maintained for their recovery or possession, whether they are in the custody of the law or not. Act of January 22,-1855, section 15.

Some question has been made in the argument, whether it was regular for the court to interpose its authority, on a mere motion to dismiss the suit, without permitting the plaintiffs to prove that they possessed the liquors with lawful intent, or to prove any other averment of their petition. If this is a hardship, it is one which the plaintiffs must bear, as the penalty of having interfered to take the property out of the custody of the law, when they had no right to do so. The averments of the petition, that the property was exempt from seizure on legal process; that the plaintiffs are entitled to the present possession thereof; and that it is wrongfully detained by defendant, are all answered by the plaintiffs themselves, in their petition, when they come to show, as the alleged cause of its detention, that it was kept by them for the purpose of being sold as intoxicating liquor, in violation of the provisions of the “ act for the suppression of intemperance,” and as such was seized. *453The averment that “ the liquors were lawfully in the possession of plaintiffs, for the purpose of being manufactured into vinegar,” becomes an immaterial, one. If proved, it would not be sufficient to sustain plaintiffs’ action. Nor was it necessary to the security and protection of plaintiff s’ rights, that they should have been permitted to prove it in this action. The privilege of establishing their right to the property, is as abundantly secured to them under the act aforesaid, in the trial before the justice of the peace, as in the action of replevin. The only question is, with whom, and in whose custody, shall the liquors remain, until the question of right is decided? Ve think they remain with the officer, in the custody of the law.

To authorize the court to dismiss the action, the motion to dismiss must be based upon matters appearing upon the face of the proceedings. In such case, a demurrer, reaching to the foundation of plaintiff’s right of action, may answer the same purpose. No testimony, outside of the record, can be introduced in support of the motion. To authorize the admission of testimony, the facts necessary to be proved, must be averred by way of plea, in the nature of a plea in abatement to the action. On such a plea, an issue may be joined, and the facts relied upon to dismiss the suit, shown in the ordinary way. As sufficient appeared upon the face of the petition, to authorize the dismissal of the suit, the admission of testimony in support of the motion, though erroneous, was error without prejudice to plaintiffs.

It is assigned for error by plaintiffs, that the court rendered judgment against them after the suit had been dismissed. The record shows, that after the dismissal, the defendant applied to the court to have his damages assessed by a jury; that a jury was waived by both parties, and the cause submitted to the court; and the value of the liquors replevied being conceded to be of the value of seventy-five dollars, judgment was rendered against plaintiffs for a return of the property to defendant, and, in default *454thereof, that defendant recover of plaintiff the sum of seventy-five dollars.

By the Code, (sec. 2001), it is provided that “if the plaintiff fail to establish his right to the property, the defendant shall recover such damages as, under the circumstances, he shows himself entitled to.” The objection urged by plaintiffs is, that after the dismissal of the suit, no judgment should have been rendered against them for the return of the property, nor, in default of such return, for their value. The question then arises, whether the defendant, upon the suit being dismissed, shall bo driven to his action on the plaintiff’s bond, or whether he is entitled to a judgment for the return of the liquors, and for their value, in default of their return. We are of opinion, that the defendant is not driven to his action on the bond, and that he is entitled to a judgment for the value of the property replevied; or, in the language of the Code above cited, he shall recover such damages as, under the circumstances, he shows himself entitled to. We do not understand the objection of the plaintiffs to be, that the amount of the damages allowed against them, is too large. Erom the effect of such judgment, if any prejudice to their interests was wrought by it, plaintiffs might easily have relieved themselves, by returning the property illegally replevied by them.

Judgment affirmed.

Wrigkt, C. J. dissenting.

Dissenting Opinion

Weight, C. J.,

dissentmg. — I cannot concur in all that is decided and held in the foregoing opinion. The points of difference, I will briefly state.

First.- — I understand that the exemption contemplated by section 1995 of the Code, refers not only to the articles enumerated in sections 1898 and 9, but also to property which is not liable to seizure, from the fact that it is owned by the plaintiff in replevin, and not by the defendant on the attachment, execution or other process. And so it has been ruled. Miller v. Bryan, 3 Iowa, 58; Smith v. Montgomery, ante, 370.

*455In the second place, while I might hold that the party against whom proceedings were commenced under the “ prohibitory liquor law,” could not maintain replevin to take the liquor from the custody of the officer, I cannot go so far as to say, that a third person, in no manner named or implicated in the proceedings, may not have the action. In this case, I do not think it was necessary for this court to have gone beyond the first inquiry. To dispose of the case, we were not strictly required to determine whether a third person could or could not bring replevin. And, therefore, when the question properly arises, I do not wish to be considered as bound by anything said upon the subject in the opinion of' the majority. I can readily suppose many cases, in which to deprive a third person of the right to replevy goods, would amount virtually to a denial of justice. But, under the suggestions above made, I need not now discuss the question.

Again: I am clearly of the opinion, that it was improper to render judgment for the value of the liquors, upon the decision of the. motion. I understand that to entitle a defendant in replevin, to recover for the value of the property, where return is awarded him, he must have the title, or be the owner of it. If he has a right to possession, the plaintiff cannot recover, though he (the plaintiff) may have the title. If the defendant has only the right to the possession, and the title should be in the plaintiff, or any other person, then defendant is entitled to recover, not the value of the property, but damages for the detention. If his right to the possession still continues at the time of judgment, then he may have an order for the return, and the necessary process may issue. Should the return not be made, he may recover upon the bond, whatever damages he may have sustained, whether before or after the judgment.

And where the defendant, as an officer, holds liquors, from the sale or disposition of which, neither he nor the state, has the right to derive any, or the least, profit, I cannot understand why he is entitled to judgment for the *456value of the liquors. I ask, who is entitled to the amount of this judgment ? Does it go into the pocket of the officer — into the school fund — the state or county treasury, or where ? What consistency is there in saying, that liquors shall not be kept, except under particular circumstances; that they may be seized and destroyed; that when condemned, they cease to be property, and have no further value; and yet permit an officer to recover the value of the very liquors which are of the prohibited character % The statement of the proposition, I think, is its best refutation.

It is objected, that unless the officer can recover the value of the liquors, then those engaged in the prohibited traffic, would invariably bring replevin, when their liquors are seized — refuse to return, when return should be adjudged — and thus have it in their power to defeat the main object of the law. I answer, first, that such proceedings would by no means, prevent their conviction and punishment. The destruction of the liquors might not be accomplished, but the offender could be punished, and the future traffic by him completely prevented. In the second place, whatever force there is in the objection, is better addressed, I think, to the law making power, than to the courts. The remedy must come from that department, and cannot be given by this.

For these reasons, I do most respectfully dissent from the foregoing opinion.