Cleveland v. Wallace
| Decision Date | 19 March 1913 |
| Citation | 131 P. 10,23 Idaho 570 |
| Parties | W. C. CLEVELAND, Respondent, v. JACK WALLACE et al., Appellants |
| Court | Idaho Supreme Court |
TWO-MILE LIMIT LAW-TRESPASSING SHEEP-UNKNOWN OWNER-ACTION FOR DAMAGES-PROCEEDING IN REM-SALE OF TRESPASSING ANIMALS.
1. Under secs. 1217 and 1218, Rev. Codes, known as the two-mile limit law, a right of action is given against any person owning or having in his charge any sheep that are allowed to herd or graze within two miles of a dwelling-house, and where the owner thereof is not known or cannot be ascertained, the person who has sustained damages by reason of the trespass may proceed against the property under secs. 1294 and 1296 of the general trespass law of the state.
2. Sec 1219 of the Rev. Codes provides that where the owner of trespassing sheep is unknown to the party injured, such party may, at his option, treat the trespassing animals as estrays but under the estray laws no damages can be collected,-such laws providing only for the disposition of the estray and the collection of the necessary costs and expense incurred in taking up and disposing of the animal.
3. Sec 4230 of the Rev. Codes authorizes the prosecution of an action against a defendant whose name is unknown, and allows the plaintiff to proceed against a defendant without giving his true name where he has been unable to ascertain the true name, and sec. 1294 of the general trespass law recognizes the same principle, and authorizes a proceeding for the assessment of damages against the trespassing animals, and provides that the amount assessed shall not be a personal judgment against the owner of the animal but can only bind the property itself.
4. Sec 3925, Rev. Codes, provides that when jurisdiction is conferred upon a court or judicial officer, all means necessary to carry the statute into effect is also given, and that in the exercise of that jurisdiction, if the course of proceedings is not specifically pointed out by the statute, the court may adopt any suitable process or mode of proceeding which may appear most conformable to the spirit of the law, and in pursuance of the authority of this statute and the right of action conferred by secs. 1217 and 1218, Rev. Codes, it is proper for a justice's court to proceed under the provisions of secs. 1294 and 1296, Rev. Codes, in a case where it is charged that the owner of trespassing sheep is unknown to the plaintiff, and that he is unable to ascertain the name of the owner, and the animals are taken into the possession of the plaintiff in the action and subsequently delivered to the officer who levies upon them under the execution issued by the justice.
5. It is not necessary in this state to fence against sheep, and so in an action under the provisions of sec. 1294, Rev. Codes, for the recovery of damages for the trespass of sheep in violation of the provisions of secs. 1217 and 1218, Rev. Codes, it is unnecessary to appoint appraisers therein provided for.
APPEAL from the District Court of the Fourth Judicial District for Blaine County. Hon. Edward A. Walters, Judge.
Action for damages. Judgment for plaintiff. Defendants appeal. Reversed.
Reversed and remanded, with direction. Costs awarded in favor of appellants.
J. W. Edgerton and Sullivan & Sullivan, for Appellants.
If procedure not pointed out, suitable one may be adopted. ( Crane v. Cummings, 137 Cal. 201, 69 P. 984; Scadden Flat G. M. Co. v. Scadden, 121 Cal. 33, 53 P. 440.)
It is not necessary in this state to fence against sheep. ( Spencer v. Morgan, 10 Idaho 542, 79 P. 459.) But every man is bound to keep his animals on his own premises at his peril, and is liable for any damages they may do by trespassing. (2 Am. & Eng. Ency. of Law, 354; 2 Cyc. 392.)
The destruction of the grasses and herbage by sheep within two miles of the dwelling-house of another is sufficient damage to the owner of horses and cattle to support distraint. ( Sweet v. Ballentyne, 8 Idaho 438, 69 P. 995.)
The jurisdiction rests upon the seizure of the property or the court's authority over the status in controversy. It is not essential there should be personal service on any individual, although there must be such publication or constructive notice as the law requires by which persons interested or to be affected are supposed to be informed of the proceeding. (23 Cyc. 1407, 1408.)
It is no objection to the proceedings that personal notice to the owner or other claimant of the property is not made necessary by the act, or essential to the jurisdiction of the magistrate, or that the proceedings are to some extent summary. (Campbell v. Evans, 45 N.Y. 358.)
If the proceedings in the nature of proceedings in rem were followed as provided by our statute, then the same rule would apply to the judgment as if it were a personal judgment. (23 Cyc. 1090, 1408, 1409; Black's Constitutional Law, 592; Southern Cal. Fruit Exch. v. Stamm, 9 N. M. 361, 54 P. 345.)
Frawley & Block and McFadden & Brodhead, for Respondent.
The unauthorized proceedings and pretended judgments in the justice court were absolutely void, and the trial court's ruling declaring same null and void was clearly warranted and entirely legal. The two-mile limit law creates not only an entirely new right and an entirely new duty, but it also prescribes a particular remedy whereby the injured party may obtain redress. This being true, the party injured is bound to follow the statutory remedy for redress, and can adopt no other remedy. (1 Cyc. 707; Sutherland on Stat. Const., 2d ed., p. 1056; 1 Dec. Dig., tit. "Actions," sec. 35; 1 Cent. Dig., tit. "Actions," sec. 275; Janney v. Buell, 55 Ala. 408; People v. Craycroft, 2 Cal. 243, 56 Am. Dec. 331; McKinney v. Monongahela Nav. Co., 14 Pa. 65, 53 Am. Dec. 518; State v. Poulterer, 16 Cal. 531.)
"A personal judgment rendered against a defendant without notice to him, or an appearance by him, is without jurisdiction, and is utterly and entirely void." (Enewold v. Olson, 39 Neb. 59, 42 Am. St. 557, 57 N.W. 765, 22 L. R. A. 573; Black on Judgments, sec. 220; 32 Cyc. 436; Bear Lake County v. Budge, 9 Idaho 703, 108 Am. St. 179, 75 P. 614.)
AILSHIE, C. J. Stewart, J., concurs. Sullivan, J., did not sit at the hearing and took no part in the case.
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 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 alleged to have been sustained by reason of the sale of these sheep. Judgment was entered in...
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