Owens v. Reese

• Decision Date: 23 February 1948
• Docket Number: 36734.
• Citation: 203 Miss. 322,33 So.2d 834
• Court: Mississippi Supreme Court
• Parties: OWENS v. REESE et al.

33 So.2d 834

203 Miss. 322

OWENS v. REESE et al.

No. 36734.

Supreme Court of Mississippi

February 23, 1948

Brown & Elledge, of Fulton, for appellant.

Greek L. Rice, Atty. Gen., and Geo. H. Ethridge Asst. Atty. Gen., for appellees.

McGEHEE Justice.

This appeal is from a final judgment of the circuit court in Itawamba County, which dismissed the petition of the appellant, Carmi Owens, for a writ of prohibition after a demurrer thereto had been sustained and the petitioner had declined to amend.

The writ of prohibition was sought from the circuit court, as aforesaid, against the appellee, N. L. Reese, sheriff of the county, the district attorney, and the county prosecuting attorney, to prevent any of them from taking any additional step in the said court under a proceeding instituted by the sheriff therein for the condemnation and sale of the petitioner's automobile, which the sheriff had alleged in an affidavit was seized by him while in the possession and under the control of the appellant, and being used by him for the transportation of 23 1/2 pints of whiskey for the purpose of sale in violation of the laws of this State.

The affidavit of the sheriff was filed in the circuit court on April 14, 1947, alleging the seizure of the said automobile on April 12, 1947; and that the same was of the value of $800. A notice or summons was thereupon served on the appellant, as owner, to appear at the next regular term of the circuit court on the first Monday of September 1947, to answer the complaint made by the affiant on behalf of the State of Mississippi for the condemnation and sale of the said automobile.

The process against the appellees on the petition of the appellant for the writ of prohibition was likewise made returnable on the first Monday of September, 1947.

The precise contention of the appellant on this appeal is that the trial court erred in sustaining the demurrer to his petition for a writ of prohibition and dismissing the same since that part of Section 2618, Code of 1942, which authorizes an officer, in the first instance, and without a precedent writ of seizure, to seize and retain an automobile allegedly used in transporting intoxicating liquor in violation of the law, does not contemplate or authorize the owner to make bond and regain possession of the automobile pending litigation and final judgment for the condemnation and sale thereof, and that the failure of the lawmakers to afford such remedy to the owner has the effect of denying to him the right to obtain the possession of his property pending litigation, and amounts to a denial of due process of law.

There was filed as an exhibit to the petition herein the said affidavit of the sheriff which set out in detail the alleged facts and circumstances under which the sheriff had seized the automobile in question. The petition alleged in general terms that the automobile was seized 'wrongfully and without authority of law', and that the affidavit had stated 'matters and things as facts which are not facts and designedly failed to state the true facts', but the petitioner fails to allege in the pleading what he contends are the real facts as to the circumstances under which the automobile was seized, if such facts were otherwise than alleged in the affidavit.

Section 2618, Code of 1942, authorizes the seizure of an automobile when being used in the transportation of intoxicating liquor in violation of the law, without the officer having precedently obtained a writ of seizure, and it is true, as contended by the appellant, that in such instance there is no statutory provision which authorizes the owner to regain possession of his automobile pending the outcome of a proceeding for the condemnation and sale thereof, as provided for in Section 2619, Code of 1942. It is merely provided by Section 2618, Code of 1942, that upon such a seizure being made, and the filing of the affidavit by the officer in the proper court, depending upon the value of the automobile, as a commencement of the proceeding to condemn and sell the automobile, the officer or the court shall give notice to or summon the interested parties to answer the complainant in the court where the cause is pending. And, the statute as above mentioned further provides for the issuance of a writ of seizure if the automobile is not in the possession of said officer, and that he may seize the same under such writ and summon 'the interested parties into court, as in proceedings for the enforcement of purchase price liens against property.'

It was held in Vance v. State, 130 Miss. 251, 93 So. 881 that a...