Walker v. Shook

49 Iowa 264 | Iowa | 1878

Servers, J.

1. intoxicating liqours: action for damages: barden of proof. The amount involved, as shown by the pleadings, being less than one hundred dollars, the trial judge, as is required by a rule of this court, has certified the questions of law “upon which it is desirable to have the opinion of the Supreme Court,” among which questions is the following: “Is it necessary, as a matter of law, for the plaintiff in this action to allege in his petition that the liquors were kept for a lawful purpose, and hot for sale contrary to law. ”

It is provided by statute “ *' * * nor shall any action be maintained for the recovery or possession of any intoxicating liquors, or the value thereof, except in cases where persons owning or possessing such liquor with lawful intent may have been illegally deprived of the same * *“. ” Code, § 1550.

This statute was in force when Sommer v. Cate, 22 Iowa, 585, was determined, and it was held in that case no recovery could be had against a carrier who failed to deliver intoxicating liquor intrusted to him, unless the plaintiff averred and proved on the trial he owned or posessed the liquor with lawful intent.

Eollowdng that decision the question above referred to must be answered in the affirmative. Such must be the necessary and logical result.

As we understand, the judgment of the District Court determined but a single question, which was that there was “not sufficient information upon which to render judgment. ” That is to say, the information filed before the justice, and on which the whole proceeding was based, was so defective or insufficient that no judgment could be rendered thereon. The court did not determine that the liquors were kept with a “lawful intent,” nor was any such question involved in the deter-ruination made. In other words, the indictment or information was bad, and no judgment could be rendered thereon.

There having been no determination as to the intent with which the liquor was kept the plaintiff, before he can recover under the statute as construed in Sommer v. Cate, must allege and prove that such intent was lawful.

The order that the liquors should be returned to the plaintiff did not vest him with any additional rights. His right to a return of the liquor would have followed, as a matter of course, the dismissal of the action. His right to recover would have been just as perfect without such order as with it. The seizure under the warrant gave the defendant the right of possession. He, therefore, was not a trespasser. If it be said he became a wrong-doer when he failed to return the liquor, as he was ordered to do by the court, still it is evident such failure must have been caused by negligence, or through a wrong intent, and such must have been true as to the carrier in Sommer v. Cate, for it appears in that case the liquor was delivered to him to be carried to and delivered at a particular place, and he failed to do so, either through negligence, or with a wrong intent.

We are unable to draw any distinction between the two eases. If the rule established in Sommer v. Cate be regarded as harsh, or, as an original proposition, that the statute was not correctly construed, still we feel bound to follow it, because of the doctrine of stem decisis, and for the further reason that such decision was made upward of ten years ago, and the construction of the statute then adopted has been acquiesced in by the legislative authority during that time. If deemed incorrect it could have been readily remedied.

We deem it unnecessary to determine the other questions certified, as we regard them as immaterial so far as a retrial is concerned.

Reversed.