193 S.E. 340 | W. Va. | 1937
On August 15, 1936, on a complaint made by one J. R. Hamrick, a warrant was issued by H. G. Thayer, a justice *281
of the peace, and delivered to members of the Department of Public Safety, authorizing the search of premises at 159 Spring Street in the City of Charleston then occupied by Edgill Bonham and others. As shown by the officer's return, the premises described in the warrant were searched, and a large amount of liquor found. The state has proceeded to declare a forfeiture of the liquor so found, under the provisions of Section 21, Article 6, Chapter
The state's demurrer rests upon the following propositions: *282 (1) The proceeding being equitable in its nature, the petitioner does not come into court with clean hands; (2) the ownership or legal right of the petitioner to the liquor in question is not alleged; (3) that it plainly appears that said liquor was acquired contrary to law; and (4) that it is not alleged that said liquor was acquired lawfully.
While this is a statutory proceeding, the petitions will have to be considered as analogous to a petition in equity, in that there are allegations of rights and a prayer for relief. In equity a bill or petition must set up the grounds upon which the prayer for relief is based. "The relief under the prayer for general relief can only be such as the facts stated warrant." Vance Shoe Co. v. Haught,
"Under a prayer for general relief you can get relief not specifically asked for, provided the facts alleged in the bill and the nature of the case warrant it, not otherwise."
Waldron v. Harvey,
"The prayer for relief does not determine the sufficiency of the plaintiff's pleading, nor can it have the effect of enlarging the stating part of the complaint or petition, nor aid in making out a cause otherwise defectively stated."
16 Enc. Pleading and Prac., 779. The requirement that a case must be made by allegations in the body of a bill is considered of such importance that one named in the caption and prayer of a bill against whom nothing is alleged has been held not to be a party to the cause. Chapman v. Pittsburgh S. R. Co.,
This case being heard on demurrer, and in the absence of any proper petition stating with particularity the claimant's right to the property in question or any proof as to the petitioner's connection with the acquisition and possession of the liquor in question, it cannot be said that the petitioner has come into court with soiled hands, or that the liquor was acquired unlawfully or possession thereof sought for an unlawful purpose. On the other hand, ownership of, or an interest in, said property on the part of the petitioner must appear. He will not be heard to complain of the illegal seizure, if it should hereafter appear that there has been such seizure, so far as the property seized is concerned, unless some right possessed by him with respect to said property has been violated, and he must allege such violation. There is abundant authority for this position. 33 Corpus Juris, 690, Section 397; 56 Corpus Juris, 1252, Section 186; Blakemore on Prohibition, 349, Section 95; U.S. v. Rykowski, 267 F. 866; Chicco v.U.S., 284 F. 434; U.S. v. Kaplan, 286 F. 963; U.S. v. Maggio,
The order of the circuit court sustaining the demurrer to the petitions is affirmed, and the case remanded.
Affirmed; remanded.