Stiller v. Atchison, T. & S. F. Ry. Co. , 34 Okla. 45 ( 1912 )

Counsel for plaintiff in error urges a reversal of the judgment herein for that there is no testimony in the record sufficient to warrant a finding by the trial court that the defendant in error the railway company was damaged in the sum of $725 by the taking of the beer under the writ; it having only a special ownership therein. We cannot agree with counsel in this contention. The railway company held this beer as a common carrier only, with instructions from the officer from whom it received the same to carry and deliver the same to the agency superintendent at Guthrie, who under the law was the legal custodian thereof and the agent of the state, which was then the owner of the beer.

"Delivery of personal property to the common carrier for transportation to the vendee, whether in accordance with his expressed or implied instructions, is a delivery to the vendee's agent and equivalent to a delivery to the vendee himself." (Colcord v. Dryfus, 1 Okla. 228, 32 P. 329.)

While no effort was made to substitute the agency superintendent as a party defendant in the place of the railway company, yet the railway company under the facts of this case, having appeared and defended for the agency superintendent, would be liable to the agency superintendent for the value of the beer in case of a wrongful failure to deliver the same. The undisputed facts as disclosed at the trial by the testimony of the plaintiff himself show that the beer was sold by the plaintiff shortly after the service of the writ and long before the trial, to the Heim Brewing Company, Kansas City, Mo., and the record further shows that the sale was made at Oklahoma City and the beer shipped to the Heim Brewing Company at Kansas City, and the court, sitting without a jury, found it unnecessary to render an alternative judgment, knowing that a return of the beer could not be had for the reasons above stated, hence there is no force in the further contention of counsel for plaintiff that the judgment was contrary to the provisions of section 5696, Comp. Laws 1909, which provides:

"In an action to recover the possession of personal property, judgment may be for the possession, or for the recovery of thepossession, or for the value thereof, in case a delivery cannotbe made," etc. (Italics ours).

Counsel insists that, before any judgment for the value of the property could be entered in favor of the defendants, it must have prayed for a return of the property. But this is not the law. In replevin, the gist of the action is the wrongful detention of the property, and the burden is on the plaintiff to make out his case to the satisfaction of the court or jury, and a general denial puts every question in issue and is sufficiently comprehensive to enable the defendant to avail himself of any defense he may have to the claim of the plaintiff; the theory of the law being that the plaintiff must recover on the strength of his own case and not on the weakness of his adversary's. Therefore the court, sitting without a jury and hearing the plaintiff admit that he had sold the beer before the trial, could not render a judgment for the return thereof, but could only render a judgment for the value of the property taken.

Counsel further contends that there was no competent evidence offered at the trial as to the value of the beer, and that therefore the court could not render a judgment in the sum of $725 against the plaintiff, and that the court also erred in admitting as evidence the replevin affidavit showing the value of the beer. Ordinarily such evidence would be inadmissible, but not so in the case at bar, for here the plaintiff by affidavit made solemn admission that the beer was of the value of $725 as shown in the affidavit of replevin. This was an admission against interest, and he is therefore estopped from denying the truthfulness of the affidavit he made and filed in the case. Besides it has been repeatedly held, and the rule is well established, that, under circumstances similar to those in this case, the affidavit in replevin is competent evidence and the court will take judicial notice of its contents. Cobbey on Replevin, sec. 345, and cases cited there. Shinn on Replevin, secs. 993 and 998, and cases cited there. In this case the affidavit was duly offered to and accepted by the court as evidence and was in no wise disputed by plaintiff except by objection as to its competency, which was properly overruled by the court.

There is another phase of this case that demands our attention and which is urged by counsel for the plaintiff in his brief. The state contends that, the judgment of forfeiture entered by the justice of the peace being one in rem and not one in personam, said justice had no power or authority to entertain plaintiff's motion to vacate, and that such act on his part was null and void, and that therefore the action in replevin would not lie. It is urged by the plaintiff that the motion to vacate is authorized by section 6380, Comp. Laws 1909, which reads as follows:

"When a judgment shall have been rendered against a defendant, in his absence, the same may be set aside upon the following conditions: First. That his motion be made within ten days after judgment was entered. Second. That he pays or confesses the judgment for costs awarded against him. Third. That he file an affidavit that he has a just and valid defense to the whole, or some part, of the plaintiff's claim. Fourth. That he notifies, in writing, the opposite party, his agent or attorney, or causes it to be done, of the opening of such judgment, and of the time and place of the trial, at least five days before the time, if the party resides in the county, and if he be not a resident of the county, by leaving a written notice thereof at the office of the justice ten days before the trial."

It will be noted, however, that Stiller was not a "defendant" in the proceedings before the justice. He was not a party to that transaction in any wise or manner, although the record (page 44) discloses that he knew the beer had been seized theday it arrived in Oklahoma City; a fact worth remembering in this connection. Good faith at least required that he should enter his appearance in the justice court and claim his property promptly or give some reasonable excuse for his failure to do so. The seizure occurring on September 22d, and Stiller having knowledge of the same and yet waiting until two days after the rendition of the judgment of forfeiture, or a total of 25 days, before claiming the beer, marks this phase of the case as most peculiar. Had he made appearance before the justice court before judgment with request for leave to interplead, he would be warranted in assuming the position of "defendant" and the law would treat him as a "defendant," and the provision of section 6380, supra, would apply. Under the facts of this case, however, this section of the statute has no application.

A judgment in rem has been well defined by Hall, J., inWoodruff v. Taylor, 20 Vt. 65, where it is said:

"A judgment in rem I understand to be an adjudication pronounced upon the status of some particular subject-matter by a tribunal having competent authority for that purpose. It differs from a judgment in personam in this, that the latter judgment is in form as well as substance between the parties claiming the right, and that it is so inter partes appears by the record itself. A judgment in rem is founded on a proceeding instituted, not against the person as such, but against or upon the thing or subject-matter itself whose state or condition is to be determined. It is a proceeding to determine the state or condition of the thing itself, and the judgment is a solemn declaration of the status of the thing and it ipso facto renders it what it declares it to be."

See, also, Street v. August Ins. Banking Co., 12 Rich. (S.C.) 13, 75 Am. Dec. 714, and the extensive note at pages 720 to 725 in the American Decisions Report; State v. Barrells ofLiquor and Pecker et al., Claimants, 47 N.H. 369, 374; Kirklandet al. v. State, 72 Ark. 171, 78 S.W. 770, 65 L. R. A. 76, 105 Am. St. Rep. 25, 2 Ann. Cas. 242, and note at pages 245, 246.

Freeman on Judgments, sec. 606, reads as follows:

"As a judgment which is strictly in rem binds all persons, whether named as parties therein or any anterior part of the record or proceedings or not, it must follow that the proceedings must be such as may indicate to all persons that their interest in the subject-matter is or may be imperiled, and that they may appear at some time and place for the purpose of making known and protecting their interests; for, as against claimants having no notice of the proceeding and no opportunity to be heard, it is not judicial in its character, and whatever may be determined against them is not entitled to respect as a judgment. We therefore suggest that a judgment is in rem whenever the process and proceedings are such as to warn all persons that the court may render judgment affecting certain property and their interests therein, and that they must, at or within a time specified, appear before the court if they wish to protect those interests from judicial condemnation. The fact that under the mode of serving process provided by law some claimant or even all claimants of the property do not receive actual notice of the proceeding will not prevent the judgment from operating in rem if the mode adopted was reasonable under the circumstances and calculated to give notice to the claimants, and the process was such as that the claimants, had it been seen by them, should have known therefrom that their interests were or might be imperiled, and that they might be heard for the preservation of such interests."

And section 611 of the same volume reads as follows:

"* * * A judgment in rem, at least when against any thing, binds the 'res in the absence of any personal notice to the parties interested.' Those parties, even in the absence of personal notice, are to be regarded as parties to the suit. It is more accurate to say that the parties in interest are bound by the judgment though they have no actual notice. The mere seizure of property does not confer jurisdiction upon the court to proceed to judgment. 'A sentence rendered simply from the fact of seizure would not be a judicial determination of the question of forfeiture, but a mere arbitrary edict of the judicial officer. The seizure in a suit in rem only brings the property seized within the custody of the court and informs the owner of that fact. The theory of the law is that all property is in the possession of its owner, in person or by agent, and that its seizure will therefore operate to impart notice to him. Where notice is thus given, the owner has the right to appear and be heard respecting the charges for which the forfeiture is claimed. That right must be recognized and its exercise allowed before the court can proceed beyond the seizure to judgment. The jurisdiction acquired by the seizure is, not to pass upon the question of forfeiture absolutely, but to pass upon that question after opportunity has been afforded to its owner and parties interested to appear and be heard upon the charges. To this end some notification of the proceedings beyond that arising from the seizure prescribing the time within which the appearance must be made is essential. Such notification is usually given by monition, public proclamation, or publication in some other form. The manner of the notification is immaterial, but the notification itself is indispensable.' It is further essential that the court have jurisdiction over the subject-matter, and whether it has such jurisdiction must, as in the case of judgments in personam, be determined by the laws creating the court and designating its general authority, or if the court acted under some special statutory authority, the statute conferring it must be examined to ascertain whether and to what extent the court was authorized to act."

In 23 Cyc. at page 1408 is found the following:

"A judgment in rem is conclusive and binding 'upon all the world'; that is, upon all persons who may have or claim any right or interest in the subject-matter of the litigation. Like other judgments of competent courts it is not open to collateral impeachment; it may be pleaded in bar of another action upon the same subject-matter if its effect is to merge a distinct cause of action, and it will operate as an estoppel in a subsequent action in respect to the points or questions adjudicated."

The justice court being clothed with complete jurisdiction of the subject-matter, and all of its acts being regular and not impeached in any way, and the proceeding being one especially authorized by statute, and the judgment being in rem and not inpersonam, and the notice required by statute having been duly given, compels us to say that the motion to vacate came too late; the justice having lost jurisdiction of the subject-matter, especially in view of the fact that the beer had been delivered to the carrier for transportation to the agency superintendent at Guthrie.

At this point another question arises upon the face of the record which requires attention. The officer seizing the beer under the search warrant, after the judgment of forfeiture had been entered, delivered the beer under the order of the court to the agency superintendent, his superior officer. Section 4186, Comp. Laws 1909, reads as follows:

"No liquors, vessels, fixtures, furniture, or other property seized by virtue of any warrant issued under the provisions of this act, shall be taken from the possession of the officer seizing same under any replevin or other process."

After the judgment of forfeiture had been entered, and Warden, the enforcement officer, had been ordered to deliver the liquor to the agency superintendent, replevin would not lie to take it from him, neither would it lie to take it from the agency superintendent, and it would simply be a waste of time and words to argue that replevin would lie to take such property from the superior officer when it would not lie to take it from the inferior officer. It was the intention of the Legislature to prevent interference by replevin actions with intoxicating liquors, etc., while in the custody of the officer under process of law, and this action comes clearly within the inhibition of that statute, and replevin was not the proper remedy, even assuming that plaintiff had a remedy at all under the facts of the case, which assumption we do not concede. The evidence in this case also discloses that the beer was brought with intent to use the same in the manufacture of "near beer," and, while the proof that such use was illegal is not as strong and conclusive as might be desired, it is very clear that the trial court might have decided that such was the intent of the plaintiff, and, had the decision turned on this question, the judgment would not be disturbed, for there is some evidence tending reasonably to support such finding of fact.

Looking at this case from every possible viewpoint, we cannot see wherein plaintiff has any reason to complain.

There being no error in the record sufficient to warrant a reversal of the case, the judgment of the district court of Oklahoma county should be affirmed.

By the Court: It is so ordered.