Moss v. Summit County

• Decision Date: 12 June 1922
• Docket Number: 3792
• Court: Utah Supreme Court
• Parties: MOSS v. SUMMIT COUNTY

208 P. 507

60 Utah 252

MOSS v. SUMMIT COUNTY

No. 3792

Supreme Court of Utah

June 12, 1922

Appeal from District Court, Third District, Summit County; W. M McCrea, Judge.

Action by M. J. Moss against Summit County. From an adverse judgment, the plaintiff appeals.

AFFIRMED.

J. J Whitaker and Parley P. Jenson, both of Salt Lake City, for appellant.

J. E Johnson, of Provo, and E. A. Rogers, of Salt Lake City, for respondent.

FRICK, J. CORFMAN, C. J., and WEBER, GIDEON, and THURMAN, JJ., concur.

OPINION

FRICK, J.

The plaintiff seeks to recover judgment against Summit county for the sum of $ 500, which, in his complaint, he alleges that said county "converted to its own use." It is not necessary to set forth the allegations of the complaint, except to state that the $ 500 aforesaid constituted a cash deposit which was made by the plaintiff upon condition that he might retain possession of his automobile which was taken into custody by the sheriff of said county at the time of plaintiff's arrest for knowingly and unlawfully having intoxicating liquors in his possession contrary to the provisions of our prohibition act, and which he was transporting in said automobile. The county answered the complaint, setting forth the facts substantially as they are found to be by the district court as hereinafter set forth.

The case was tried to the court without a jury. Omitting all formal allegations and all matters of inducement, the court found as follows:

That on May 20, 1919, a complaint in writing was duly filed by the county attorney of Summit county with a justice of the peace charging the plaintiff herein with the crime of knowingly and unlawfully having in his possession intoxicating liquors; that plaintiff was arrested upon said charge by the sheriff of said county, and brought before said justice of the peace; "that thereupon, by agreement between plaintiff, M. J. Moss, and the said justice of the peace, the sum of $ 500 was fixed as bail for the appearance of said automobile for trial at such time as the court should fix, and that thereupon this plaintiff deposited the sum of $ 1,000 cash as bail for the appearance of himself and his said automobile, and said Moss [plaintiff] was thereupon released from custody and was permitted to and did take his said automobile;" that the plaintiff was fined by said justice of the peace on said charge in the sum of $ 299, which sum the justice deducted from the money deposited for his personal appearance as aforesaid, and returned to the plaintiff the sum of $ 201; that thereafter, on June 20, 1919, the justice paid to the county treasurer of said county the remainder of the money deposited with him, to wit, the sum of $ 500, and said money is now retained by said county; that on November 3, 1920, plaintiff presented his claim to the board of county commissioners of Summit county demanding the return of said money, but said claim was rejected, and said money has not been returned or paid to the plaintiff; "that the said automobile herein mentioned was used by the plaintiff at the time of the seizure thereof for the unlawful transportation of liquor in Summit county, Utah; that, within two months after the delivery of the said automobile to the plaintiff by the said justice of the peace, the said M. J. Moss sold said automobile, and has not produced said automobile, and has not been able to produce said automobile since said time; that the said plaintiff, M. J. Moss, by his own act, has deprived Summit county of the power to repossess said automobile and to proceed with the forfeiture of said automobile."

Upon the foregoing findings the court found, as a conclusion of law, that plaintiff is not entitled to recover, and entered judgment to that effect, from which this appeal is prosecuted.

Plaintiff assigns the following as errors: (1) That the court erred in finding that he agreed to deposit $ 500 for the return of his automobile; (2) that the court erred in finding that the plaintiff, by his own action, has prevented Summit county from repossessing itself of said automobile; (3) that the court erred in its conclusion of law; (4) that it erred in denying plaintiff's motion for a new trial; and (5) that the judgment is contrary to law. There are three other assignments, but they are covered by the foregoing. Assignments 1 and 2 need not be considered, (a) because it is not pointed out wherein the evidence is insufficient to justify the findings, and (b) because the assignments are not argued in the brief. Moreover, the material questions involved on this appeal relate to questions of law merely, which we shall now proceed to consider.

It must be conceded that the proceedings had before the justice of the peace in the criminal action were irregular, and that the record of such proceedings is likewise somewhat fragmentary, and incomplete. There is no doubt, however, that the plaintiff was duly charged with having committed an offense against our prohibition act, to wit, with knowingly and unlawfully having in his possession intoxicating liquors; that a warrant for his arrest was duly issued; that the sheriff arrested him and brought him before the justice of the peace, who issued the warrant; that large quantities of intoxicating liquors were found in plaintiff's automobile, which he was driving at the time of his arrest, and which liquors were in his exclusive possession; that after his arrest he deposited cash bail in lieu of a bail bond for his personal appearance; that the justice fined him in the sum of $ 299, and returned to him $ 201 of the $ 500 which was deposited for his personal appearance. There is, among the files in the case, a written plea of guilty, signed by plaintiff's attorney, and, in view that the whole $ 500 deposited for his personal appearance was not forfeited, it seems the justice must have acted upon the plea of guilty, and thus imposed a fine of $ 299, instead of forfeiting the whole amount deposited for plaintiff's personal appearance. Under our statute, plaintiff's attorney was authorized to enter a plea of guilty in plaintiff's absence. We make these observations merely in explanation of the justice's record, and not because they have any controlling influence upon our decision. The justice had full authority, under our statute, to receive a cash deposit for plaintiff's personal appearance, but he had no authority to receive the $ 500, or any other sum, for the return of the automobile. Neither had he any authority to permit the automobile to be returned to the plaintiff. It also appears from the justice's record that, when plaintiff was brought before the justice, and while under arrest, he was given time to consult counsel, which he did. Plaintiff having failed to return the automobile, the justice after imposing the fine as aforesaid, attempted to forfeit the $ 500, and turned the same over to the treasurer of Summit county. While under our statute, the automobile was subject to forfeiture and sale, the proceeds of such sale would, however, have to be paid to the state and not to the county. Moreover, a justice of the peace has no authority or power to forfeit an automobile or other property taken under a warrant or otherwise. Where an automobile, or other property, is being used for unlawful purposes, under our prohibition act, and is taken by an officer, the justice is required forthwith to certify the proceeding to the district court, and to which court the sheriff, or officer having custody of the property, must make full report. The district court, in case an automobile is seized, upon a hearing, may declare the same forfeited and order it sold, and the proceeds of such sale must be paid to the state treasurer. It is apparent, therefore, this in this case the proceedings were not only very irregular, but they were contrary to the provisions of our statute to which we have referred.

In view of what has been said, counsel for plaintiff in effect contend that the title to the $ 500 deposited by plaintiff for the return of the automobile never passed from him, and that the county holds the same for his use and benefit, and that the court erred in not entering judgment to that effect.

It must be conceded that the question of plaintiff's legal right in the premises is not entirely free from difficulty and doubt. Plaintiff's counsel, in support of their contention, cite and rely upon the case of Brasfield v. Town of Milan, 127 Tenn. 561 155 S.W. 926, 44 L. R. A. (N. S.) 1150, and the following cases which are cited in that case, namely, Applegate v. Young, 62 Kan. 100, 61 P. 402; Butler v. Foster, Treasurer, etc., 14 Ala. 323, and Snyder v. Gross, 69 Neb. 340, 95 N.W. 636, 5 Ann. Cas. 152. In Appelgate v. Young, supra, the defendant, after having his bail forfeited appeared and was tried upon the charge filed against him, and was acquitted of the offense. It has also been held that, where one deposits a cash bail, and his arrest was illegal, his act in depositing a cash...