Fries & Co. v. Porch

Day, J. 1. intoxicating liquors replevin. I. The questions involved in this case are interesting and important, being no less than whether it is competent in this State, by sharp practice, to defeat the administration of justice, and whether this can be done with impunity. The record discloses the fact that the [356] liquors in question at the time of obtaining the writ of replevin were in possession of Porch, as marshal of Iowa City, having been seized under a warrant duly issued under section 1544 of the Code. In Funk & Hardman v. Israel, 5 Iowa, 438, this court held that where proceedings are in progress under the prqhibitory liquor law, to determine whether certain intoxicating liquors are liable to be forfeited, the liquors are not subject to an action of replevin. In this case it was said: “To suffer a party in an action of replevin to take the liquors out of the hands of the officer seizing them would be an interference with the administration of justice in criminal proceedings, and would defeat the whole object and intention of the prohibitory liquor law. By that law the keeping of intoxicating liquors for sale is prohibited; the liquors so kept are declared a nuisance, and must be forfeited and destroyed. It is easy to perceive that if they may be replevied out of the hands of the officer seizing them there will be very few instances in which the object of the statute will be attained, by the destruction of the liquors kept for sale contrary to law. * * * The liquors were in the custody of the law, by virtue of process issued in a criminal proceeding, and were awaiting the action of the court under the law, by which it was to be ascertained whether or not they were liable to be forfeited, and to a judgment that they be destroyed. While such proceedings are in progress the liquors are not the subject of an action of replevin. An attempt of the owners to regain their possession by a writ of replevin would, at common law, be deemed a contempt of the jurisdiction of the court issuing the warrant.” 2. —:-: authority of office. In this case the petition in replevin alleges that the liquors are in their original packages in which they were imported into the State with lawful intent, and not to avoid the laws of Iowa for the suppression of intemperance, and that the defendant claims to hold the same under some process against one Levy. The petition sets forth upon its face good grounds for the action of replevin, and under it [357] there was no course to pursue but to issue the writ, and turn the property over to the plaintiffs. The defendant answered, alleging that the liquors were rightfully in his possession, by virtue of a search-warrant, duly issued, as provided in the Code. He showed, by his answer, that he had no proprietary interest in the property, and that he held it in an official capacity, as the mere agent or instrument of the State in the enforcement of the law, for it has been held that proceedings under this statute are criminal in their character. See State v. Harris, 40 Iowa, 95. The answer of the defendant, Porch, showed that his only authority and duty in relation to the liquors were to hold them securely to await the order of the court. He had no more authority to agree that plaintiff might take judgment for the possession of the liquors than he would have had to consent that, in a proceeding of habeas corpus, judgment might be entered for the discharge of a prisoner. This being the attitude of the ease the court ought not to have recognized the stipulation for judgment made by the defendant, Porch, but should have inquired into the truth of the allegations contained in the answer, and if, upon such inquiry, the court found that the liquors were in custody of the law, under provisions of the statute, the court should have rendered judgment for the return of the liquors to the custody of the officer, and, in default of such return, for their value. See Funk & Hardman v. Israel, 5 Iowa, 438; State v. Harris & Folsom, 38 Iowa, 242; Monty v. Arneson, 25 Iowa, 383. 3. _:_vacation of ’ judgment. II. It is claimed, however, that as the court did entertain the agreement and enter judgment for the plaintiff no remedy can be now applied. It is insisted that Porch did not except to the judgment, and does not now complain of it, and that there is no other party to the record who can be heard to complain. In other words, the position is, that if the officer by a corrupt agreement turns over to a claimant property which it was the duty of the officer to hold, subject to the order of the court, that the law is powerless to grant any adequate remedy, and that it may be [358] violated and disregarded with impunity. As we have seen, the defendant, Porch, held the property, not in an individual but in an official capacity, as the agent or representative of the State. It was competent for the attorneys representing the real interests involved, in order to prevent a failure in the administration of justice, to prosecute in his name a motion to vacate the judgment, and in his name, he being the only party to the record, to appeal therefrom. See State v. Cavers, 22 Iowa, 343. III. It is claimed, however, that no exception to the ruling upon the motion was taken by Porch, or in his name, and that consequently no appeal can be prosecuted in his behalf. This obj ection is purely technical. The record shows that the attorneys who filed the motion and prosecuted the suit against said liquors excepted for the State of Iowa and prosecuting witness. The State, as a party to the proceeding for the condemnation of the liquors involved in this action, was the real party in interest, and an exception on behalf of such party fairly saves the question for review. An exception in the name of Porch would, at the most, have been merely formal, as it cannot be claimed that he desired any exception taken or would have authorized it. 4_._. • IY. The affidavit filed on behalf of the plaintiff, no less than those filed by the attorneys representing the State, shows the agreement upon the part of Porch to be unauthorized and corrupt. This affidavit states “that said Porch stated that he did not wish to run the risk of being liable for any more costs, and that if the plaintiff would pay the costs, and pay him certain other costs due him in some other cases in which plaintiff was in no wise concerned, he would settle the ease and consent to judgment for plaintiff.” It thus appears, from the only showing made in resistance to the motion, that the defendant Porch agreed to violate his official duty, and assist the plaintiff in defeating the administration of justice, in consideration of a pecuniary reward to be paid to him personally. [359] When the facts which the record discloses were brought to the attention of the court, the judgment rendered in favor of the plaintiffs for the possession of the property should have been set aside. The cause is reversed, and remanded to the court below with direction to allow a substitution of the present acting marshal of Iowa City as defendant, and to inquire whether the liquors were held by Porch pursuant to warrant issued under section 1544 of the Code, and if it shall appear that they were so held, and that judgment has been entered for the destruction of said liquors, to order that they be returned to said marshal to be dealt with as provided by law, and, in default of said'return, that judgment be entered in favor of said marshal, for the use of the State, against the plaintiffs for the mercantile value of said liquors. REVERSED.