State v. Burrows's Liquors

| Conn. | Oct 15, 1870

Butler, C. J.

The court was clearly right in rejecting the plea of Burrows. He had no standing in the Superior Court.

The proceeding is special, statutory, and in rem, and every step is specifically prescribed. The warrant is framed and issued to search for and seize the liquors, and charges no personal offence against the owner or keeper, and does not prescribe his arrest or summon him to answer.

When the liquors are seized and taken into the custody of the law, the justice who issued the warrant is required to summon the party named in the complaint as owner or keeper, and all other persons who may have an interest in the liquors, by written notice, served upon the person named in the complaint as owner or keeper, and posted on the public sign-post in the town, to appear at a specified time and place to show cause why the liquor should not be forfeited. If the person named, or any other person claiming an interest in the liquor, appear to show such cause, they become severally parties defendant, (unless they have a joint interest,) and are recognized and treated as several parties defendant in all the subsequent steps and proceedings prescribed by the statute. The 25th section, which authorizes an appeal, is carefully and specifically framed in accordance with that idea. Each party having a several interest is given a separate right of appeal, and must give a separate recognizance, and he may have the issue made by him tried separately, and a separate judgment against him for cost.

In this case Elkinton and Burrows had no joint interest as joint owners or partners, and though both appeared the issues made by them were several and distinct. Burrows appeared as keeper, claiming no title to the liquor and denying that he kept it for sale. Elkinton appeared as the owner, denying also of course that the liquors were kept by Burrows for sale. The justice found that the liquors were kept for sale, and declared them forfeited. Elkinton appealed, but Burrows did not. It was not important that he should so far as Elkinton was concerned, for the latter could make the same issue before the Superior Court which Burrows could make. As Burrows took no appeal he had no case in the Superior Court, and was not a party to the appeal of Elkinton. No judgment could be rendered against him for costs in the Superior Court, nor could he be recognized for any purpose as a party to the pending appeal. The court was clearly right therefore in refusing to recognize him as such a party.

There is no error in the record.

In this opinion the other judges concurred ; except Park, J., who having tried the case in the court below did not sit.