Schlesinger v. Chapman

Loomis, J. This is a complaint in replevin to recover possession of certain spirituous and intoxicating liquors which had been attached as the property of one Moore by Chapman (one of the defendants) as deputy sheriff, and which at the commencement of this suit were held by him in that capacity under a writ of attachment in favor of A. & H. Myers (also defendants) and against Moore. The answer of the defendants in this suit, by way of first defense, set forth the facts concerning the attachment as above, and alleged that the liquors when so attached belonged to Moore and not to the plaintiffs. The second defense consisted entirely of new matter constituting a statutory bar to the action, namely, that the liquors sought to be replevied were intended by the owner or keeper to be sold contrary to law and were a nuisance. The first defense was entirely disposed of by the findinof the court that the plaintiffs were the owners of the liquors in question and had a right to the immediate posses [273] sion. The question for review therefore arises solely under the second defense, and this is presented by the reasons of appeal as follows :— 1st. On the facts found by the court, as of record, the court should have held, as matter of law, that the liquors in question were a nuisance under section 1, part 5, of the act of 1882, with regard to spirituous and intoxicating liquors. 2d. The court should have held, as matter of law, that no action could be maintained to recover possession of said liquors, as provided in section 1, part 9, of said act, as “ held by the owner or possessor thereof contrary to law.” Although in form two errors are assigned, yet in reality they are one and the same; both depend on a single question, namely,—were the liquors kept with intent to sell the same contrary to law? If they were so kept, they were a nuisance, and under the statute referred to, as construed by this court in Donahue v. Maloney, 49 Conn., 163, the plaintiffs are denied any right of action for their recovery. But the question whether the liquors were kept by any person with intent to sell is purely one of fact, to be found as such by the court below, and therefore it is not subject to review by this' court. And herein we find an insurmountable difficulty in the way of reversing the plaintiffs’ judgment. The controlling fact essential to defeat their right to recover the liquors is not found, and as to the plaintiffs it does not appear whether they had a license to sell or not, and therefore the second defense must prove as unavailing to the defendants as the first. Having thus disposed of the ease upon the facts, there is no occasion to discuss or decide any of the interesting questions of law presented by the arguments of counsel. The view we have taken of the case however renders it proper to advert to a request made by the counsel for the defendants, that if this court should be of opinion that the record omits facts essential to a forfeiture of the plaintiffs’ right of action under the statute, the case should be re274 mantled to the court below for further hearing and finding. If the case had been reserved for the advice of this court the record might have beexx sent back as suggested, or, what is the more common course, the advice given by this court might have been made contingent upon aix amendment and some further finding of fact. But this case coxxxes here by appeal from a final judgment in favor of the plaintiffs. The appeal here simply performs the office of the old xxxotion in error or writ of error, and the judgment rendered in the court below must stand unless the record, as it is, discloses some manifest error sufficient to set it aside. There was no error in the judgment complained of. In this opinion the other judges concurred; Judge Hovey of the Superior Court sitting in the case.