Shook v. Sexton

• Decision Date: 17 March 1905
• Citation: 79 P. 1093,37 Wash. 509
• Parties: SHOOK v. SEXTON et ux.
• Court: Washington Supreme Court

79 P. 1093

37 Wash. 509

SHOOK v. SEXTON et ux.

Supreme Court of Washington

March 17, 1905

Appeal from Superior Court, Lincoln County; C. H. Neal, Judge.

Action by J. P. Shook against John C. Sexton and wife. From a judgment for defendants, plaintiff appeals. Affirmed.

Wright & Wright, for appellant.

Myers &amp Warren, for respondents.

HADLEY J.

This is an ordinary action in replevin for the recovery of a horse. The value is alleged at $150. The defendants answered alleging ownership and right to possession as purchasers at an impounding sale made in pursuance of an ordinance of the town of Reardan, a municipal corporation of the fourth class in this state. A written stipulation in the record, signed by counsel for the respective parties, admits that the facts alleged in both the complaint and answer are true. The stipulation also contains the following: 'It is further stipulated that, if the court finds the ordinance set up in the answer to be valid, legal, and constitutional, then judgment shall be entered for the defendant; but, if the court finds that said ordinance is invalid, illegal and unconstitutional, then judgment shall be entered for the plaintiff.' It might be argued from the above quotation that the parties were bound by the judgment of the trial court without further contest, but respondents do not urge that point, and, inasmuch as the parties and the trial court seem to have treated the stipulation as sufficient to submit the issue of the validity of the ordinance, and without limitations as to further contest, we shall so regard it. The court held the ordinance to be valid, and entered judgment for the defendants. The plaintiff has appealed.

The amount in controversy is not within the jurisdiction of this court, but, inasmuch as the validity of the ordinance was considered as in issue, this court has jurisdiction of the appeal, under section 4, article 4, of the state Constitution, and section 4650, 2 Ballinger's Ann. Codes & St., whereby jurisdiction is vested here without regard to the amount in controversy, when the validity of a statute is involved in the action. The only question before us is that of the validity of the ordinance. We here set forth the ordinance in full:

'Section 1. That after the 31st day of May, 1903, it shall be unlawful for the owners thereof to permit any hogs, mules horses or cattle to run at large within the corporate limits of the town of Reardan, and any person who shall permit any mules, horses or cattle to run at large contrary to the provisions of this section shall be fined in the sum of two dollars for each head of mules, horses or cattle so permitted to run at large and any person who shall permit any hog to run at large contrary to the provisions of this section shall be fined in the sum of one dollar for each hog so permitted to run at large.

'Sec. 2. That it shall be the duty of the marshal to take up any hogs, mules, cattle or horses permitted to run at large in violation of this ordinance and immediately post notices in three public places within the corporate limits of the town of Reardan, which notices shall give a description of the stock taken up and state that said stock, unless redeemed by the owner, will be offered for sale at public auction, stating the hour and the day when and the place where such sale shall occur. That such sale shall in no case occur in less than five days from the date of said notices, and that the owner shall have the right to redeem any stock taken up as hereinbefore provided, at any time prior to the date of said sale by paying the fine and the costs of keeping and feeding such stock. That if at the time set for the said sale, said stock shall not have been redeemed, then the marshal shall proceed to offer said stock for sale to the highest bidder for cash, and he shall retain from the proceeds of such sale the cost of keeping and feeding said stock, the amount of the fine and 10 per cent. of the amount of the proceeds of such sale, and the overplus, if any, to be deposited with the treasurer and kept by him for six months; provided, if the owner of the stock so sold shall at any time within the said six months, prove his ownership of said stock then said overplus shall be paid over to said owner, but if no claim shall have been made for said overplus within said six months, then said overplus shall be accredited to the current expense fund and all rights of redemption shall have expired. That in case there shall not be a reasonable sum bid for any stock advertised for sale hereinbefore provided, the marshal may at his option adjourn said sale and readvertise from time to time.

'Sec. 3. That the marshal shall retain as his compensation for the enforcement of the provisions of this ordinance, one half of all fines which may be collected and 10 per cent. of all sales made under the provisions of this ordinance. That any sum which may be retained as

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