Stephenson v. Brunson , 83 Ala. 455 ( 1887 )

GLOPTON, J.

A person who takes up an estray, • and complies with the requirements of the statutes, is constituted a bailee of the animal during the time he is required to keep it, unless sooner claimed by the owner; and is vested with a qualified property in the subject of the bailment, which becomes absolute on the failure of the owner to appear and prove his property therein within the time prescribed. — Code, 1876, §§ 1552-1577; Hudgins v. Glass, 34 Ala. 110. Section 1569 provides: “If the owner of any estray, within one year from the execution of the bond given under section 1558, claims the same, he must notify the taker, and satisfactorily establish his claim before a justice of the peace of the county, either by his own, or the oath of another person.” The defendant had taken up the cattle in controversy, and complied with the statutory requirements. About January 1st, 1883, and before the expiration of one year after the execution of the bond, the plaintiff notified defendant that he claimed the estray, and would go before a justice to prove his property. On the next day, without further notice to the defendant, the plaintiff went before a justice of the peace, and made affidavit that the cattle estrayed were his property: and thereupon the justice made an order, requiring the cattle to be delivered to the plaintiff, on his paying the expenses of estraying and keeping.

By a fair and reasonable interpretation of the statute, the party claiming an estray must notify the taker, not only of his claim, but also of the time, place, ánd before what justice he will establish it. The intention of the statute is, that the taker shall have an opportunity to appear and contest the ownership of the claimant. If the owner of an estray does not appear and prove his property therein within the time prescribed, and as provided by the statute, he forfeits his right thereto, and the property is vested in the taker. — Code of 1876, § 1577. It could not have been intended, that the taker should be deprived of his possession and qualified property in the estray, and of his absolute right thereto in the event the owner forfeits his right, by an ex-parte proceeding. Though the statute may not expressly inquire notice, it would be unreasonable to suppose that it was intended to conclude the taker by such proceedings. It is a fundamental principle, a constitutional right, that every person shall have notice of any judicial proceeding instituted for the purpose of divesting him of his property. Without notice, there is not dne process of law.—Brown v. Wheeler, 3 Ala. 287; McCurry v. Hooper, 12 Ala. 823; Lehman, Durr & Co. v. Robinson, 59 Ala. 219. The establishment of the claim of the owner is a gwr,si-judicial proceeding; and the same justice, before whom the owner proves his property, must determine the compensation to which the taker is entitled, if the parties can not agree. Proof of the claim of the plaintiff by his ex-parte affidavit, and the order of the justice, do not bind nor conclude the defendant, and do not prevent him to contest the plaintiff’s ownership of the cattle in controversy in this action. Some of the rulings of the court are adverse to these views.

2. A failure to pay the legal costs and compensation for keeping the estray before the expiration of one year, within which the owner is required to appear and prove his property therein, if he has established his claim within the limited period, does not forfeit his right to the property, when such failure is caused by the absence dr other act-of the taker, or for any reason which excuses delay.

Reversed and remanded.