Barrett v. Rowe , 1889 Mich. LEXIS 885 ( 1889 )

Sherwood, C. J.

This action is replevin for a cow, and was tried in the Cheboygan circuit before the court without a jury, and judgment was given for the plaintiff. Defendant brings error. The facts in the case are all conceded, and are as follows:

“That the cow in question was impounded on the night of August 30; that notice of sale was posted on September 1; that the sale took place on September 8. Plaintiff replevied the cow, claiming that the sale was illegal, and did not divest him of the title to the animal. Plaintiff raises no question regarding the validity of the village ordinance; admitting that, if their proceedings leading up to the sale were proper, they had a right to go on and make the sale. But said plaintiff claims that the proceedings leading up to the sale were illegal and unauthorized, in this: That the village ordinance of Mackinaw City provided as follows:

‘ “ Seo. 9. The pound-master shall (at the public pound) sell at public auction any animal which has been impounded therein for a period of eight days, and is unclaimed, or whose owner refuses to pay the fees hereinbefore provided. Notice of such sale shall be given at least six days prior thereto, and shall contain a description, as near as may be, of the animal to be sold, and shall be posted in conspicuous position in the three following places, to wit: At the post-office, at the south-east comer of lot twenty in block number sixty-three, and at the pound where such sale is to be held,’ etc.

“ The plaintiff’s position is that no legal notice of sale can be posted, and no proceedings taken leading up to the sale, till that eight days have expired. Defendant, however, claims, even if that were so, that then, under the statute, plaintiff had no right to replevin the animal in that way; that said plaintiff ought to have proceeded under the statute relative to distraining cattle. It is also conceded by plaintiff that he knew of the fact of said cow being impounded, but that at the time of sale he forbade the same. It is also conceded that the value of the cow was the sum of fifty dollars.”

The position of counsel for plaintiff is correct. The sale provided for under the ordinance of the village of Mackinaw City could not be made until eight days after the animal is impounded, and not then until six days’ previous notice of the same had been given. The notice is a part of the proceedings to sale, and cannot be taken until after the eight days of impounding have expired under the ordinance. It was evidently intended to give the owner an opportunity for fourteen days to redeem his property before making sale thereof. The sale was premature.

The plaintiff had the right to bring the action he did to recover his property. That provided for under chapter 289, How. Stat. §§ 8372-8371, applies to cases arising under the provisions of that chapter, and is confined thereto.

The judgment at the circuit must be affirmed.

The other Justices concurred.