123 Minn. 333 | Minn. | 1913
At the opening of the trial of this action, and after the first witness had been called and sworn, defendants objected to the introduction of any evidence under the complaint, on the ground that it failed to state facts sufficient to constitute a cause of action. The objection was sustained and the trial thus ended. Plaintiff appealed from an order denying a new trial. The only question presented is whether the court erred in this ruling.
The following facts appear from the complaint: Defendant Petrie at the time in question was sheriff of Hubbard county, and defendants St angler and Kessler were sureties on his official bond. On April 1, 1904, a justice of the peace of said county, acting under chapter 252, p. 398, Laws 1901, now section 1553, K. L. 1905, upon a complaint duly made and filed, issued a warrant in due form of law commanding the sheriff or any constable of said county to arrest one B. A. Manter, plaintiff’s intestate, on the charge of keeping and maintaining an unlicensed drinking place, and to thoroughly search the premises kept by Manter and to seize and hold all intoxicating liquors, all vessels, all bar fixtures, screens, bottles and other appurtenances found therein and apparently used in retailing liquors in violation of law. The warrant was delivered to the defendant sheriff, for service, who, upon the date stated, arrested Manter and seized and took into his possession a large quantity of beer and numerous bottles, jugs, and other appurtenances usually kept in a saloon or unlicensed drinking place, including 1,700 cigars. Manter was taken before the justice on the warrant, and a transfer of the action was taken to an adjoining justice of the peace, before whom a trial was had, which resulted in the conviction of the accused. He appealed to the district court, and in June, 1904, was acquitted and the prosecution dismissed. After setting out at length these facts the complaint further alleges that the sheriff so negligently cared for the property that it became “consumed” and destroyed, to plaintiff’s damage in the sum of $1,000, for which judgment was demanded. Defendant answered, denying generally the allegations of the complaint, except as expressly admitted. The action was commenced in April, 1905, nearly a year after the termination of the criminal prosecu
In so far as concerns the liquors seized the proceeding is one in rem, with the contraband character of the property the primary question to he determined. The officer who serves the warrant and takes the property acts in, his official capacity, and in response to the command of the writ. The property after seizure by him is in the custody of the law, awaiting the final determination of the issues presented, and he is wholly without authority to dispose of any part of it, except pursuant to directions of the court; the statutes involved in the case at bar commanded him to seize and hold the property “subject to the order of the court,” and the general rule applicable to property in custodia legis controls his action in the premises. Black, Intox. Liquors, § 362; Funk v. Israel, 5 Iowa, 438; Fries & Co. v.
Nor can the officer be disturbed in his possession until the court makes an appropriate order in the premises. Though the statute does not expressly provide for the entry of an order disposing of the property on the acquittal of the person accused, that such an order should be made, not only for the guidance and protection of the officer, but as the final act ending the proceeding, seems clear. It is just as important as the order for the destruction of the property where the accused is found guilty. Commonwealth v. Intox. Liquor, 103 Mass. 454. The accused may apply for an order of restitution upon his acquittal, and it is the duty of the court, in a proper case to grant it. Com. v. Intox. Liquors, supra. But the failure of the court to make the same does not render the officer a wrongdoer or entitle any person whether the owner of the property or not, to disturb his official possession. Voetsch v. Phelps, 112 Mass. 407. Nor is it the duty of the officer to procure the order. He is not a party to the proceedings and is not required to take notice of the final determination thereof. Until he is informed in some official way of the acquittal of the accused person and of the order of the court disposing of the property, no action can be maintained against him. Hines v. Chambers, 29 Minn. 7, 11 N. W. 129; Foster v. Wiley, 27 Mich. 244, 15 Am. Rep. 185; 2 Freeman, Executions (2d ed.) § 302. Restoration of the owner’s right of possession and a termination of the officer’s right to retain the property, are indispensable to an action against the officer in such cases. And it is not important whether the owner sues for the possession of the property, for the wrongful conversion thereof, or for its loss by the negligence of the officer. Until the order of restoration is made the property remains in the custody of the law, subject to the order of the court, and the officer is immune from suit concerning it. So in the case at bar it not appearing that any order of the court restoring the property to Manter was ever made, the action was premature, and the court below properly held that the complaint failed to state a cause of action.
Order affirmed.