J. L. Owens Co. v. Davis , 45 S.D. 405 ( 1922 )

ANDERSON, J.

This action is brought to recover the value of a grain cleaner and a crate of sieves sold by respondent to one Coffey, residing at Florence in this state. On August 2, 1919, respondent consigned the cleaner to its own order at Florence. This cleaner arrived at the point of destination August xi, 1919. On 'September 16, 1919, respondent consigned to said Coffey at said place, one crate of sieves of the agreed value of $42. These sieves arrived at the place of destination September 26, 1919. Coffey refused to receive either of these consignments. On October 11, 1919, the Director General of Railroads caused the cleaner to be sold in satisfaction of the transportation charges. Before making sale, he caused a notice to 'be posted on the depot door at Florence, 'August 20, 1919,. This notice stated that the cleaner would be sold to the highest bidder October 11, 1919, unless charges against the same should be paid prior thereto. Without other or further notice said cleaner was sold, and delivered to third party at a price which satisfied the carrying charges, but no more. On October 8, 1919, the Director General caused to be posted on the depot door at Florence a written notice to the effect that the crate of sieves would be sold at the depot at Florence, November 29, 1919, in satisfaction of carrying charges accruing against the same. Thereafter, and on November 29, 1919, said crate of sieves was accordingly sold for the amount of transportation charges, and no more.

The foregoing comprises the substance of the allegations of the complaint so far as the same pertain to the sales and the notices thereof. Appellant, 'by his answer, admits that respondent made the shipments in.the manner and form as in the complaint set forth, and that defendant sold the same for carrying charges as in the complaint set forth.

Respondent made a motion for judgment on the pleadings, and pursuant to such motion the lower court did enter judgment in favor of respondent and against appellant in the sum of $981.15. From' this judgment and an order denying motion for new trial appellant has appealed to this court.

The only assignment of error in this record is as follows:

“The court erred in granting the motion of plaintiff for judgment on pleadings.”

Respondent contends that the sale of the property was illegal and void by reason of the fact that in making the same defendant did not comply with the provisions in sections 1126, 1127, and 1128, R. C. 1919, relative to the disposition of unclaimed property.

Appellant contends that by reason of the provisions of the Federal Control Act of Congress (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 19x9 §§ 3115^-3115,¿4p), all laws of this state pertaining to enforcement of liens for carrying charges are superseded and therefore inoperative. This so far as this case is concerned becomes immaterial, and we express no opinion in relation thereto.

Appellant bases his defense solely on the provisions of General Order No. 34a, promulgated by the Director General October 1, 1918, which order, so far as material, reads:

“'Carriers subject to federal control shall sell at public auction to the highest bidder, without advertisement, carload and less than carload nonperishable freight which has been refused or is unclaimed at destination by consignees after the same has been on hand 60 days. Consignees, as described in the waybilling, shall be notified of arrival of shipments in all cases, and such notice shall contain provisions that after freight is unclaimed) or undelivered for 15 days after expiration of free lime at destination it will he treated as refused and will be sold without further notice 60 days from the date of notice of arrival.

“Consignors shall be' notified when freight is refused or is unclaimed, as provided above, when the consignor can be determined from the billing or when shipments are' marked with the consignor’s name and address; such notice to contain provisions that unless proper orders for disposition are received on or before a specified date, not earlier than 60 days from dale of arrival and notice to consignee, the shipment will be sold for charges without further notice.”

By reference to this order it will appear that there are provisions for notice, both to the consignor and to the consignee. No such notice was given in either instance, and no reason offered for failure. The provision for sale of refused or unclaimed property under the terms of this order are statutory in their nature. As such they require strict compliance. In this case the showing fails to reveal even a substantial compliance. From the foregoing we think it clear that respondent was deprived of its property v ithout due process of law.

The judgment and order appealed from are affirmed.