Mills Novelty Co. v. Dunbar

• Decision Date: 06 January 1906
• Citation: 83 P. 932,11 Idaho 671
• Parties: MILLS NOVELTY COMPANY v. DUNBAR
• Court: Idaho Supreme Court

83 P. 932

11 Idaho 671

MILLS NOVELTY COMPANY v. DUNBAR

Supreme Court of Idaho

January 6, 1906

REPLEVIN-GAMBLING DEVICES-SLOT MACHINES-ALLEGATIONS OF COMPLAINT-DENIALS BY ANSWER-SEPARATE DEFENSES-JUDGMENT ON PLEADINGS-CONSTITUTIONAL LAW.

1. Answer examined and held sufficient to put in issue the allegations of the complaint.

2. Where the plaintiff moves for judgment on the pleadings, if the answer put in issue the material allegations of the complaint, it is not error to deny such motion.

3. Where the answer puts in issue the material allegations of the complaint and the plaintiff refuses or declines to introduce any evidence on the trial in support of the allegations of the complaint, it is not error for the court to enter a judgment of dismissal where no affirmative relief is sought by the answer.

4. Where the answer puts in issue the material allegations of the complaint, on the trial it is incumbent on the plaintiff to establish the material allegations of the complaint by a preponderance of evidence, and where he declines to introduce any evidence whatever it is not error for the court to enter judgment of dismissal.

5. The rule is well established in this court that the constitutionality of a law will not be passed upon unless it is absolutely necessary to do so in order to decide the case.

(Syllabus by the court.)

APPEAL from District Court of Ada County. Honorable George H Stewart, Judge.

Action in replevin to recover certain gambling devices known as slot machines. Judgment for defendant. Affirmed.

Judgment of the trial court affirmed with costs in favor of respondent.

Hawley Puckett & Hawley and K. I. Perky, for Appellant.

There is in the answer an attempted denial of the ownership of the property in the plaintiff, but the court will notice that the attempted denial is in the language of the complaint itself which is no denial whatever. (Richardson v. Smith, 29 Cal. 529; Doll v. Good, 38 Cal. 287; Power v. Gum, 6 Mont. 9, 9 P. 575.) In an action of this kind, where the defendant attempts to justify his action in the nature of an avoidance, even though the complaint is not verified, the allegations thereof must be specifically denied in the answer. This rule has long since been laid down by this court in the well-considered case of United States v. Alexander, 2 Idaho 386, 17 P. 746. Section 4847 of the Penal Code of Idaho provides for taking property without due process of law. (Ieck v. Anderson, 57 Cal. 251, 40 Am. Rep. 115; State v. Robbins, 124 Ind. 308, 24 N.E. 978, 8 L. R. A. 438; Chauvin v. Valiton, 8 Mont. 451, 20 P. 658, 3 L. R. A. 194; Dartmouth College Case, 4 Wheat. 519, 4 L.Ed. 629; Brown v. City of Denver, 7 Colo. 305, 3 P. 455; Stuart v. Palmer, 74 N.Y. 183, 30 Am. Rep. 289; Thomas v. Gain, 35 Mich. 155, 24 Am. Rep. 535; Davidson v. New Orleans, 96 U.S. 97, 24 L.Ed. 616; County of San Mateo v. Southern P. Ry. Co., 13 F. 722; Colon v. Lisk, 153 N.Y. 188, 60 Am. St. Rep. 609, 47 N.E. 302; Lowry v. Rainwater, 70 Mo. 152, 35 Am. Rep. 420; Garland Novelty Co. v. State, 71 Ark. 138, 71 S.W. 257.)

Quarles & Pritchard, for Respondent.

Courts will not lend their aid to violators of the law for the purpose of recovering from officers of the law instruments of crime "devised and designed" for gambling purposes. Such instruments are outlawed, and belong to no one. (Board of Police Commrs. v. Wagner, 93 Md. 182, 86 Am. St. Rep. 423, 48 A. 455, 52 L. R. A. 775; Spaulding v. Preston, 21 Vt. 10, 50 Am. Dec. 68; State v. Robbins, 124 Ind. 308, 8 L. R. A. 438, 24 N.E. 978.) When an act is prohibited, for instance, the catching of fish in nets, the sale of milk that will not stand certain tests, the counterfeiting of money, gambling, etc., the state may, in the exercise of its police power, seize and destroy the instruments by which the forbidden acts are carried on, and in doing so property is not taken from its owner without legal process in violation of the state and federal constitutions, and the fourteenth amendment is not thereby violated. (Lawton v. Steele, 119 N.Y. 226, 16 Am. St. Rep. 813, 23 N.E. 878, 7 L. R. A. 134; Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385; Deem's Case, 80 Md. 173, 45 Am. St. Rep. 339, 30 A. 648, 26 L. R. A. 541; Spaulding v. Preston, 21 Vt. 10, 50 Am. Dec. 68; Board etc. Baltimore v. Wagner, 93 Md. 182, 86 Am. St. Rep. 423, 52 L. R. A. 775, 48 A. 455; Garland Novelty Co. v. State, 71 Ark. 138, 71 S.W. 257; State v. Soucie's Hotel, 95 Me. 518, 50 A. 709; Furth v. State, 72 Ark. 161, 78 S.W. 759; Frost v. People, 193 Ill. 635, 86 Am. St. Rep. 352, 61 N.E. 1054; Glennon v. Britton, 155 Ill. 232, 40 N.E. 594; Kite v. People, 32 Colo. 5, 74 P. 886; Bobel v. People, 173 Ill. 19, 64 Am. St. Rep. 64, 50 N.E. 322; Wagner v. Upshur, 95 Md. 519, 93 Am. St. Rep. 412, 52 A. 509; State v. O'Neil, 58 Vt. 163, 56 Am. Rep. 557, 2 A. 586; Bales v. State, 3 W.Va. 687.)

SULLIVAN, J. Stockslager, C. J., and Ailshie, J., concur.

OPINION

The facts are stated in the opinion.

SULLIVAN, J.

This is an action in replevin to recover nine slot machines alleged to be of the value of $ 325. The plaintiff is an Illinois corporation, and alleges in its complaint that the defendant on the twenty-second day of October, 1904, at Boise City, and without plaintiff's consent, and wrongfully, took said slot machines from the possession of the plaintiff; that upon demand the defendant refused to deliver the same to the plaintiff. Judgment is demanded for the recovery of said chattels or for their value in case delivery cannot be had together with $ 25 damages and costs of suit. The amended answer sets up three separate defenses. In the first the incorporation of the plaintiff is admitted, but avers that the plaintiff has not filed a copy of its articles, certified or otherwise, in the office of the Secretary of State of the state of Idaho and has not in writing or otherwise designated any person residing within the state as its agent upon whom legal process may be served, and denies that the plaintiff was on the twenty-second day of October, 1904, or at any other time, at the city of Boise, or any other place within the state of Idaho lawfully possessed of said slot machines, or that the plaintiff was at the commencement of this action, or at any time since, entitled to the possession of said slot machines; denies that said slot machines are of the value of $ 325 or any other sum; denies that said slot machines, or any part thereof, was on said date or at any time the property of the plaintiff; denies that the plaintiff at any time before the commencement of this action demanded the possession of said slot machines; denies that he still unjustly detains the same or ever at any time unjustly detained the same to the damage of the plaintiff in any sum whatever.

For a second defense the defendant alleges that he is a duly appointed, qualified and acting justice of the peace, in and for Boise Precinct No. 2 of Ada county, Idaho; that on the twenty-second day of October, 1904, information was presented to him as such justice of the peace, by which as such justice of the peace he was informed and satisfied that gambling devices, to wit, said nine slot machines, were then within said city and then in operation as such gambling devices in said city; that said information was derived from an affidavit of the prosecuting attorney of said county; that thereupon defendant, acting as such justice of the peace forthwith issued warrants to "the sheriff or any deputy sheriff or constable of said county," commanding that said slot machines be brought before him at his office in said city, and that thereupon said slot machines were under and by virtue of said warrants, which warrants were placed in the hands of A. Anderson, a constable of said county, and under and by virtue of which said constable brought before the defendant, as justice of the peace, said slot machines to be dealt with according to law and the...