Spratt v. Gray

• Decision Date: 15 February 1921
• Citation: 81 Fla. 200,87 So. 760
• Parties: SPRATT v. GRAY.
• Court: Florida Supreme Court

87 So. 760

81 Fla. 200

SPRATT v. GRAY.

Florida Supreme Court

February 15, 1921

Rehearing Denied March 14, 1921.

Error to Circuit Court, Leon County; E. C. Love, Judge.

Replevin by Simon Spratt against J. H. Gray. Judgment for defendant and plaintiff brings error.

Reversed.

Syllabus by the Court

SYLLABUS

Statute held not to authorize forfeiture of personalty, when owner not principal or accessory. The statute (chapter 7736, Acts of Extraordinary Session of the Legislature 1918, Laws of Florida) designed, among other things, to make it unlawful for any person to engage in the manufacture, sale, barter exchange, or transportation of intoxicating liquors, and providing for the forfeiture of personal property used in or to facilitate the violation of the provisions of the act does not authorize such forfeiture 'when it shall be made to appear that the bona fide owner of such personal property was not concerned in such violation as principal in the first or second degree or accessory before or after the fact.'

Automobile of innocent owner, though used for unlawful transportation held not subject to forfeiture. Under the statute (chapter 7736, Acts of Extraordinary Session of the Legislature 1918, Laws of Florida), the automobile of an innocent owner, although used in the unlawful transportation of intoxicating liquor, is not subject to forfeiture, and the forfeiture proceeding of which such owner has no notice is ineffectual to divest him of title to such automobile.

Sale of automobile used in unlawful transportation without notice to innocent owner ineffectual. Where notice of forefeiture proceeding under the statute (chapter 7736, Acts of Extraordinary Session of the Legislature 1918, Laws of Florida) is not given as required by the statute to the innocent owner of an automobile used in the unlawful transportation of intoxicating liquor, and such owner does not appear therein as a party claimant or otherwise, such proceeding is ineffectual to divest the owner of his property in such automobile, and the purchaser at a sale in such proceeding acquires no title thereto which will entitle him to the possession of the automobile as against such owner.

COUNSEL

W. J. Oven and S. H. Diamond, both of Tallahassee, for plaintiff in error.

Fred H. Davis, of Tallahassee, for defendant in error.

OPINION

WEST J.

In an action of replevin to recover the possession of one Ford automobile, the verdict and judgment were for defendant, and plaintiff took writ of error.

The plaintiff undertook in the trial to show his right of recovery by proof of his ownership and the invalidity of the proceeding under the provisions of chapter 7736, Acts Extra Session of 1918, by which the automobile was condemned and forfeited because of its alleged use in the unlawful transportation of intoxicating liquors. The bill of sale by which plaintiff acquired the ownership of the automobile was offered in evidence, and the record of the forefeiture proceeding under which the defendant acquired possession of the automobile was also offered in evidence by the plaintiff.

The statute provides that automobiles and other personal property used to violate or to facilitate the violation of the law forbidding the manufacture, sale, barter, exchange, etc., of intoxicating liquors shall be seized and forfeited as therein provided. But it further also provides (section 5, pp. 34, 35) that----

'No personal property of any kind or description used in, or to facilitate, the violation of any of the provisions of this act, shall be forfeited as is in this act provided, when it shall be made to appear that the bona fide owner of such personal property was not concerned in such violation as principal in the first or second degree, or accessory before or after the fact.'

The statute (section 15, p. 43) enacts:

'That it shall be the duty of the sheriff of the county, within ten days after the receipt of any such things, to make and subscribe to an affidavit in writing before some officer authorized by law to administer an oath, reciting such seizure, with the date, place and things seized, giving a reasonably full description thereof, and the name of the alleged owner and person from whose possession same were taken, if either or both be known to such sheriff, and within ten days after the receipt of such things by the sheriff, such sheriff shall present such affidavit to the judge of the circuit court of the county where such things were seized, and such circuit judge shall direct that such sheriff shall serve written notice upon such owner and person from whose possession such things were taken, if known, and if he or they be within the county, of the time and place of the hearing upon such affidavit, which may be in term time or in vacation, and at any place within the judicial circuit as the circuit judge may fix, which notice shall be signed by the circuit judge citing such person or persons to appear and show cause, if any, why such things should not be adjudged forfeited and disposed of as in this section provided. But if such sheriff shall recite in his affidavit that such things were not taken from the possession of any person, association of persons, or corporation, or that the owner is unknown, or that either of such persons are without the county, conceals himself or themselves, or that personal service of such notice cannot be made by such sheriff for any good reason, the circuit judge shall by written order direct that, in lieu of personal notice of such hearing to any such person, that written notice of such hearing shall be posted at the county courthouse door, directed to all persons interested in such things, and giving notice of such seizure, and of the date and place thereof and a reasonable description of the things seized, and of the time and place of the hearing upon such affidavit, which notice shall be signed by the circuit judge.' (Italics supplied.)

It also provides (section 15, p. 44) that----

'If any person shall appear at such hearing and claim the things and interpose any defense to such affidavit, the circuit judge shall determine whether the evidence adduced...