Bailey v. O'Fallon

• Decision Date: 03 November 1902
• Citation: 30 Colo. 419,70 P. 755
• Parties: BAILEY v. O'FALLON.
• Court: Colorado Supreme Court

70 P. 755

30 Colo. 419

BAILEY v. O'FALLON.

Supreme Court of Colorado

November 3, 1902

Error to Gunnison county court.

Action by Pat O'Fallon against Walter Bailey. From a judgment in favor of plaintiff, defendant brings error. Affirmed.

Steele J., dissenting.

J. C Helm, for plaintiff in error.

Sprigg Shackelford, for defendant in error.

GABBERT J.

The character of this action appears from the opinion in Bailey v. O'Fallon, 70 P. 755. Plaintiff in error (defendant below) claimed that he was entitled to the possession of the mare until his charges for caring for her, as agent of the Colorado Humane Society, were discharged. The trial court rendered judgment in favor of the plaintiff because, in his opinion, the law under which the defendant assumed to act was unconstitutional, and that when he took possession of the animal he was not the duly authorized agent of the humane society. Counsel for defendant contend the court erred in determining these questions. They are not necessarily involved, because, for another reason, the judgment must be affirmed, and we shall not pass upon them. The writ of replevin was sued out after defendant had taken steps to sell the mare for the purpose of enforcing his lien. At the time he took these steps he knew that plaintiff was the owner of the animal. He did nothing more, however, in the way of giving notice of sale, than by posting three notices of the time and place when and where it would occur. Section 114, 1 Mills' Ann. St., which designates how liens of the character claimed by defendant may be enforced, provides that, in addition to posting notices of sale, notice shall also be given the owner, if known. This latter notice the defendant failed to give, although he knew plaintiff was the owner of the animal. The statutes under which defendant assumed to act are in derogation of the common law, and must be strictly construed, and substantially followed. The authority of the defendant to sell for the purpose of enforcing his lien depended entirely upon a compliance with the statute relating to sale. When he undertook to act without such compliance, he exceeded his authority, so that although all steps and acts upon his part may have been legal up to this point, his attempt to exercise an authority in a manner which the law does not recognize was a trespass, which related back to the inception of the transaction, and rendered the whole proceeding void from the beginning. Weber v. Hartman, 7 Colo. 13, 1 P. 230, 49 Am.Rep. 339. On this proposition, 9 Bac. Abr. 451, is cited in the above case, and quoted with approval, where it is said: 'Where the law has given an authority, it seems reasonable that the law should, in order to secure such persons as are the objects thereof from abuse of the authority, when it is abused, make everything done void; and leave the abuser in the same situation as if he had done everything without any authority.' Counsel for defendant contend the record discloses that plaintiff was fully apprised of the proceeding...