Maley v. Heichemer

• Decision Date: 25 April 1927
• Docket Number: 11502.
• Parties: MALEY v. HEICHEMER et al.
• Court: Colorado Supreme Court

256 P. 4

81 Colo. 379

MALEY v. HEICHEMER et al.

No. 11502.

Supreme Court of Colorado, En Banc.

April 25, 1927

On Petition for Rehearing, May 16, 1927.

Error to District Court, City and County of Denver; Henley A Calvert, Judge.

Action by John T. Maley against E. E. Heichemer, doing business as the City Warehouse Company, in which the People of the State of Colorado intervened. Judgment for defendant and intervener, and plaintiff brings error.

Affirmed.

On Petition for Rehearing.

Horace N. Hawkins, Jr., of Denver, for plaintiff in error.

Foster Cline, Dist. Atty., and Harold Clark Thompson, Deputy Dist Atty., both of Denver, for defendants in error.

ADAMS J.

Maley plaintiff in error and plaintiff in the trial court, brought a replevin action against Heichemer, doing business as City Warehouse Company, defendant, to recover 500 cases of tomatoes. The people of the state of Colorado intervened. Maley obtained possession of the goods under the replevin writ, but disposed of them before the final determination of the case. Judgment was against plaintiff in favor of defendant Heichemer for warehouse charges, and against plaintiff and in favor of intervener, the people, for the value of the goods. Maley prosecutes a writ of error to set aside the judgment against him in favor of the people. No one else is involved; all parties have admitted that the judgment for the warehouse charges is correct.

Maley is a lawyer; he claimed the goods and now claims the proceeds thereof under a bill of sale obtained on January 24, 1925, for a fee from one of his clients by the name of Gilbert Olace, who at that time was incarcerated in the Denver county jail, awaiting trial on divers charges of having violated the prohibition law. The state claimed the same goods and now claims their proceeds on the ground that neither Olace nor Maley had any property rights in them because forfeited to the state, for, it is said, they were used or kept as a subterfuge, and as contrivances, things, or devices for the purpose of violating the state law relating to intoxicating liquors.

The controversy arose in this wise: December 13, 1924, a freight shipment from San Francisco, Cal., purporting to be from California Food Products Company and to consist of 600 cases of canned tomatoes, was routed to city warehouse, Denver. They were said to contain solid pack tomatoes of 1924 crop as follows: 150 cases Del Monte brand, 350 cases Libby McNeil and Libby brand, and 100 cases Star brand tomatoes, and the cases or wooden boxes were each separately labeled in accordance with these designations. Both in shipment and at the warehouse the cases were commingled, and all were claimed by the same proprietor. They were shipped in one care from San Francisco. The shipper wrote the warehouse to take charge of the car and to hold it subject to disposal of its representative, who would present an order for withdrawal of any or all cases. The shipper's 'representative' was Olace; the bill of landing was sent to him with above withdrawal order. After arrival of the shipment, Olace withdrew a few of the cases labeled 'Star brand,' and left about 87 cases of that brand and all of the other brands at the warehouse.

Five hundred cases, now the subject of this controversy, consisting of the 150 cases of Del Monte brand, and the 350 cases of Libby McNeil and Libby brand, contained genuine tomatoes, but the 100 cases labeled 'Star brand' contained bottles of intoxicating liquor. The police discovered the plot, arrested Olace and an alleged confederate by the name of Morris, and on January 14, 1925, seized and destroyed all that was left of the intoxicating liquor in the 87 cases of 'Star brand' at the warehouse. Until then the warehouseman did not know of the deceptive nature of the bailment. The police did not molest the 500 cases of genuine tomatoes remaining in the warehouse. The intoxicating liquor involved in the charge against Olace and Morris came in the above California shipment. Bill of lading and letter from California Food Products Company were found on Olace's person when arrested. Morris thereafter pleaded guilty and was fined; Olace was tried and convicted on two counts; the conspiracy charge against the two was pending when the replevin suit was brought.

On January 24, 1925, Olace, then in jail, at a conference between him and his attorney, Maley, the plaintiff, executed a written instrument, purporting to assign and transfer to Maley all Olace's right, title, and interest in and to the 500 cases of tomatoes stored at the warehouse.

Maley did not then try to get the tomatoes, but on the same day took the Olace bill of sale and delivery order to the warehouse company, got a receipt in which it is said that the company holds the tomatoes for Maley, subject only to the approval of the shipper, California Food Products Company. Within 48 hours thereafter--on January 26--the district attorney, upon behalf of the people, obtained an ex parte order in the criminal division of the district court, in one of the cases charging Morris and Olace with violating the intoxicating liquor law, and in which case Maley was Olace's lawyer. The order was on the district attorney's petition, claiming the tomatoes at contraband to be confiscated; that they were in above warehouse; and that the defendants (Morris and Olace) and their attorneys were making an effort to obtain possession and control of them. The petition refers to 400 cases; whether this is a stenographic error or not we do not know, but the court order reads 500. It says:

'* * * It is hereby ordered, adjudged, and decreed that the City Warehouse Company, 901 Wazee street, Denver, Colo., is ordered not to permit the defendants (Morris and Olace), or either of them, their agents, or attorneys, or any other person whomsoever to remove any portion of the 500 cases of tomatoes now stored in said warehouse, which tomatoes were consigned to said warehouse, together with 100 cases of intoxicating liquor.

'This order is to be in force and effect until further order of the court concerning said 500 cases of tomatoes.

'By the Court: Charles C. Sackmann, Judge.'

Maley does not claim not to have known about the above order; he ignored it, however, claiming that it was void because, he says, the court had no jurisdiction to issue it. He says in his replevin suit that he demanded possession of the tomatoes from the warehouse company on February 27, 1925, although it appears elsewhere that there was an earlier refusal by the warehouse company, due to the service of the court order. On the day last named, Maley brought this replevin action. The sheriff took possession of the 500 cases of tomatoes under the writ, and, as no redelivery bond was given, turned them over to plaintiff. He sold them a few days afterwards, without waiting for the outcome of the lawsuit, and kept the proceeds. Thereafter, on March 6, 1925, the people of the state of Colorado intervened. The district attorney in his intervention stated the facts about the cases against Morris and Olace, recited the court order of January 26, and set forth in detail that the 500 cases of genuine canned tomatoes were used by Morris and Olace as a contrivance, thing, and device for the purpose of conveying and assisting in conveying to Denver 100 cases of intoxicating liquor; that the 500 cases were used as a device, contrivance, and thing to camouflage, disguise, and conceal the 100 cases of intoxicating liquor, in violation of law. The intervener sought to confiscate the 500 cases and to have them forfeited to the state and sold. Upon the trial, the court directed a verdict against the plaintiff and in favor of defendant for the warehouse charges, and in favor of intervener for the value of the chattels, as plaintiff's actions had rendered their return impossible.

As to California Food Products Company, apparently there was no such concern; its letter head was deceptive; a letter addressed to its supposed California address was returned unclaimed. This pseudo company and Olace may be considered as one and the same. The record does not show him to have been engaged in any particular occupation other than that of generally plying his unlawful trade in intoxicating liquors.

There are five main branches of the case to consider: (1) The rights of Olace in the tomatoes in question, up to the time that he sold them or attempted to sell them to Maley; (2) Maley's interest, if any; (3) the interest, if any, of the state; (4) the procedure followed by the state in asserting its claim; and (5) questions of evidence.

1. Under the chapter concerning intoxicating liquors, C. L. 1921, section 3720, reads:

'There shall be no property rights of any kind whatsoever in any liquors, vessels, appliances, fixtures, bars, furniture, implements, wagons, automobiles, vehicles, contrivances, or any other things or devices used in or kept for the purpose of violating any of the provisions of this act.'

Without repeating the narrative above set forth, or the corroborating circumstances in the...