Cleveland v. Wallace

AILSIIIE, C. J. — This action involves the validity of certain judgments and execution sales had under secs. 1217 and 1218 of the Rev. Codes, popularly known as the two-mile limit law. A band of sheep, which subsequent events have disclosed belonged to respondent herein, were herded and grazed — 573 — for something like a week within two miles of the dwelling-house of the appellants Couch and Wallace. The band of sheep numbered something like 2,500, and was herded by a Basque, who either could not or would not speak English. Couch and Wallace endeavored to learn the name of the owner of the sheep but were unable to do so. On June 5th Couch and Wallace each commenced an action in the justice’s court of the precinct wherein the trespass was committed for the recovery of damages under the two-mile limit law. Their actions were commenced and summonses were issued against John Doe, whose real name was alleged to be unknown to the plaintiffs. The summonses were served on the Basque herder and a return was made that service had been made on the defendant named in the complaint and summons. Upon the return day, no appearance was made on behalf of the defendant, and the true name of the defendant was still unknown to the plaintiffs. They introduced their evidence and judgments were entered in favor of the plaintiffs. The judgments were entered as judgments in rem against the sheep and there were no personal judgments against anyone. In these judgments the justice of the peace recited the fact that it appeared to him that a band of sheep had been taken charge of by the respective plaintiffs Couch and Wallace on the 6th day of June, which was the day following the filing of the complaints, and that they had been in possession of the sheep from that date until the date of the entry of judgment, and the judgment thereupon ordered and adjudged that a sufficient number of the trespassing sheep be sold to satisfy the judgments and costs. Executions were issued to ■the constable, reciting the amounts of the respective judgments, and directing him to levy upon the sheep and sell a sufficient number to satisfy these judgments. The constable thereupon proceeded in accordance with the statute, directing the manner of execution sales, and sold some 85 head, from which he realized sufficient to pay the judgments and costs and expenses of sale. Thereafter the respondent Cleveland commenced this action against Couch and Wallace and the constable to recover damages representing the loss — 574 — alleged to have been sustained by reason of the sale of these sheep. Judgment was entered in favor of Cleveland, and this appeal was thereupon prosecuted. The question presented on this appeal is the jurisdiction of the justice of the peace to enter the judgments in favor of Couch and Wallace and to issue execution thereon and the regularity of the proceedings had thereon. The appellants proceeded in the lower court upon the theory that secs. 1217 and 1218, known as the two-mile limit law, gave them a right of action against the owner of these sheep, whether known or unknown, and that under those provisions of the statute they were entitled to recover a judgment for the trespass committed. They took the further position that, since those statutes prescribe no procedure for obtaining relief where the owner of the trespassing sheep is unknown, that they might then have recourse to the general trespass law of the state dealing with trespassing animals generally, and pursue the remedy therein prescribed to be pursued where the owner of the animals is unknown. They accordingly rely upon the provisions of secs. 1294 and 1296, Rev. Codes, dealing with the subject of trespassing animals. The respondent contends, however, that appellants failed even to comply with the provisions of sec. 1294, in that the owner of the animals was not served with process, and that the justice of the peace failed to appoint the appraisers therein provided for to examine the fences and testify concerning their condition. Appellants admit that no appraisers were appointed, and they justify the action of the justice of the peace in failing to appoint appraisers, upon the ground that it is not necessary in this state to fence against sheep (Spencer v. Morgan, 10 Ida. 542, 79 Pac. 459), and on the further ground that sheep are trespassing animals when herding on the public domain anywhere within two miles of a dwelling-house. It is clear to us in the outset that if secs. 1294 and 1296 of the Rev. Codes are applicable and may be resorted to as a remedy in such a case under the two-mile limit law, that it was unnecessary for the justice of the peace to appoint appraisers in this case. The reason is apparent. The matter of a suffi — 575 — eient fence or no fence at all would have been entirely immaterial, and it was unnecessary to have any evidence produced on that question. The only question was as to whether the animals had herded or grazed within two miles of the dwelling-house of the plaintiff in the action and, if' so, the amount of damages sustained thereby. Now, then, the question remaining to be determined is: Did the appellants here pursue the right remedy in the justice court in procuring their judgments and causing the respondent’s property to be seized and sold? It is clear that secs. 1217 and 1218, known as the two-mile limit law, gave them a right of action, and, if they could make their proofs, entitled them to recover damages. If, however, they could not 'ascertain the name of the owner of the property and could not secure service on him, then they could obtain no personal judgment against him. The question then recurs, is there any other remedy to be found in the statutes applicable to this ease and which might be invoked in aid of the right of action granted by these sections of the statute? Sec. 1219 recognizes the fact that the owner or agent of the owner may be “unknown to the party injured by such trespass,” and that section authorizes such trespassing sheep to be dealt with under the estray laws if the party so chooses. The estray laws, however, secs. 1299 to 1301, inclusive, do not provide for or contemplate the recovery or collection of any private damages by the taker-up of estrays or by anyone. Those statutes provide only for the disposition of the estrays and the payment of the necessary costs and charges incident thereto. Turning, however, to the statutes dealing with trespassing animals generally, we find that secs. 1294 and 1296 provide a remedy for all cases where the owner of the trespassing animals is unknown, and sec. 1294 specifically provides that “such judgment only binds said property.” See. 4230, Rev. Codes, recognizes the fact that it may sometimes be necessary to prosecute an action against a defendant whose name is unknown to the plaintiff, and it accordingly authorizes such a proceeding. See. 3925 of the Rev. Codes provides that, “When jurisdiction is, by'this code or by any other statute, — 576 — ■conferred on a court or judicial officer all the means necessary to carry it into effect are also given; and in the exercise ■of the jurisdiction if the course of proceedings be not specially pointed out by this code, or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code.” It would seem, therefore, that where a party is given a right of action under secs. 1217 and 1218, but, owing to his inability to ascertain who is the owner of the trespassing animals and is really responsible for the injury, he cannot therefore procure a personal judgment against the owner, he may avail himself of the appropriate remedy provided by statute in cases where the •owner is unknown, whereby the relief is sought and .the remedy is had against the property alone. In such a case, while the party injured cannot ascertain the name of the owner, he can lay hold upon and identify the property which has caused the injury. The procedure provided by secs. 1294 and 1296 gives a judicial hearing, requires proofs, gives public notice both of the hearing and of the seizure and sale of the property. This accords the party, whoever he may be, that is the owner of the property, due process of law, in so far as the judgment affects the specific property involved. In eases where it is charged that animals have trespassed against which it is required to maintain lawful fences, then it is necessary for the justice of the peace to appoint the appraisers provided for by section 1294. . In case, however, where the charge is-a violation of the two-mile limit law by the trespassing of sheep, the appointment of such appraisers would be a useless thing and could accomplish no purpose whatever, and such appraisers would be unable to testify to any essential or material fact in the case. The trial court erred in ruling that the proceedings of the justice’s court were without jurisdiction, and that the sale of the sheep on execution issued from the justice court was unauthorized and void. For the foregoing reasons, the judgment of the lower court must be reversed, and it is so ordered, and the cause is remanded, with direction to grant'a new trial or take such — 577 — further proceedings in accordance with the views herein expressed as may be necessary to a proper disposition of this case. Costs awarded in favor of appellants. Stewart, J., concurs. Sulliván, J., did not sit at the hearing and took no part in the ease.