93 P. 598 | Kan. | 1908
The opinion of the court was delivered by
The defendant moves to dismiss the appeal here on the grounds that the court below found the issues iri his ‘favor upon evidence and the evidence is not brought up, only a transcript of the record being here. In support of this motion it is said the trial court found generally in favor of the defendant, and,
Had the court simply found the issues in the case in favor of the defendant this rule would be applicable. Not so in this case. The plaintiff asserted his right of possession and the unlawful detention of the property by the defendant; the defendant denied plaintiff’s claims generally, and as a special defense asserted that his possession of the property was as an officer of the law, under the order of the court — that the property was in custodia legis, and, in support thereof, exhibited the court files in the case of the State of Kansas against John W. Cleevelin and Caroline Cleevelin. The decision of the court was based entirely upon this special defense, and as the plaintiff makes no contention that the facts upon which this defense was based were not supported by the evidence he had no occasion to bring up the evidence. The motion to dismiss is denied.
The question remaining, which determines the case, is whether, under the facts found by the court as to the nature of defendant’s possession of the property, the plaintiff could maintain replevin therefor, assuming that the plaintiff had full ownership and the defendant had no personal right thereto. In other words, when the state is proceeding to abate an alleged nuisance in a legal manner, and seizes personal property which from its alleged use constitutes a nuisance, caii an owner of the property litigate the right of possession thereto with the sheriff, the arm of the court, and thus forestall a possible order of the court to destroy the property as a nuisance?
We think the trial court correctly answered the question. ' True, as contended by the plaintiff, section 266 of the civil code (Gen. Stat. 1901, § 4713) assures to either party in an action for the specific recovery of personal property the right of trial by a jury. But the question here involved is not solely one of the right of
It was held in the case of In re Massey, Petitioner, 56 Kan. 120, 42 Pac. 365, that one claiming to own property which had been seized under the provisions of the prohibitory liquor law then in force could “maintain an action of replevin before another court of competent jurisdiction against the officer for the purpose of determining his right to the property.” (Syllabus.) This decision was expressly based upon the absence of any provision in the nuisance statute for a hearing as to the rights of property in the court where the criminal action was pending. This omission has since been supplied in the act known as the Hurrel law, enacted in 1901. Moreover, the language copied from the syllabus in the Massey case, swpra, is misleading. The question in that case was whether the officer who seized
As before said, the question involved in this action is not solely the relative rights of the owner and of Wallace, as an individual, to the possession of the property in question. An information had been filed charging that the property, as used, was a common nuisance. A warrant had been issued and the property had, so to speak, been arrested on this charge, and the sheriff, as required by law, was holding it in his custody until such time as the court should determine, under a speedy procedure provided by law, whether the property was, so to speak, innocent and should be returned or whether it was guilty and should be destroyed. It is a proceeding in rem, and while it is pending in due and orderly course the owner of the property should not be allowed to intervene, except to “answer the complaint made against such intoxicating liquors,” as provided in section 2495 of the General Statutes of 1901. The property was in custodia legis, and the proceeding was in rem. (The State v. McManus, 65 Kan. 720, 70 Pac. 700; Karr v. Stahl, 75 Kan. 387, 89 Pac. 669; 17 A. & E. Encycl. of L. 304; 23 Cyc. 298.) The proceeding is due process of law.
The plaintiff urges that the notice of the condemnation proceeding was not properly addressed and not properly served. It should have been addressed to the defendant “and to all persons claiming any interest in
The judgment is affirmed.