"(1)
That the personal property taken on the writ of replevin
herein consisted of intoxicating liquors and other property
which said plaintiff was keeping and using in violation of
law, and was, at the time of the issuance and service of said
writ, in custodia legis, the same being in the possession of
the defendant, Frank M. Stahl, who was at the time, and still
is, the legally qualified and acting chief of police of the
city of Topeka, pursuant to the issuance and service of a
valid search-and-seizure warrant under the ordinances of the
city of Topeka, in a criminal prosecution against said
plaintiff for a violation of ordinance No. 2211, being an
ordinance to prohibit the sale of intoxicating liquors, and
to prohibit and suppress the keeping of places where
intoxicating liquors are sold and used, except for lawful
purposes, and the said plaintiff had no legal right to take
said property in said replevin suit, and was and is not
entitled to the possession thereof, and has no legal right to
maintain said replevin suit.
"(2)
And for further answer and defense to said petition said
defendant refers to his first defense herein and makes the
same a part of this defense as fully as if the same were set
out in detail, and, in addition thereto, says that said
plaintiff had no legal right to commence and maintain said
replevin suit, and now has no legal right to maintain the
same, for the reason that sections 7, 8 and 9 of said
ordinance No. 2211, under which the plaintiff was arrested
provides fully how the right and title to the property in
controversy shall be tried and determined in the police court
of said city, and the said plaintiff, prior to the time that
proceedings under sections 7, 8 and 9 could be instituted to
determine the right and title to said property, commenced
this replevin suit and thereby prevented the institution of
such proceedings to determine the right and title to said
property; that said sections 7, 8 and 9 of said ordinance No.
2211 are as follow:
"'SEC.
7. Upon the filing with the police judge of a complaint under
oath charging that a place is kept or maintained as a common
nuisance by any person or persons, and that intoxicating
liquors, bottles, kegs, pumps, bars or other property are
kept or used therein in keeping and maintaining such place as
a common nuisance, a warrant shall be issued commanding the
officer to whom it is directed to arrest the person or
persons charged or described as the keeper or keepers
thereof, to search the place described in such complaint, and
seize and take into his custody all intoxicating liquors,
bottles, pumps, glasses, kegs, bars and other property
described in said complaint which he may find at such place,
and safely keep the same subject to the order of the court.
The complaint shall describe the place to be searched with
sufficient particularity to identify the same, and shall
describe the intoxicating liquors or other property alleged
to be used in maintaining the same as particularly as
practicable; but any description, however general, that will
enable the officer executing the warrant to identify the
property to be seized shall be deemed sufficient. Upon the
return of the warrant the court shall proceed as in other
cases against the person or persons arrested and the liquor
seized.
"'SEC
8. Whenever any intoxicating liquors or other property shall
be seized under such a warrant, whether an arrest has been
made or not, the police judge shall issue a notice within
forty-eight hours after the return of the warrant, directed
to the defendant in such action, and to all persons claiming
any interest in the intoxicating liquors or other property,
fixing the time and place at which all persons claiming any
interest therein may appear and answer the complaint made
against such intoxicating liquors or other property, and show
cause, if any they have, why the same should not be adjudged
forfeited and ordered destroyed. The notice shall be served
upon the defendant or defendants in the action in the same
manner as a summons, if they be found within the jurisdiction
of the police judge, and a copy thereof shall also be posted
in a conspicuous position on the place where such property
was seized. If at the time for filing answer said notice has
not been duly served, or other sufficient cause appear, the
time for answering may be by the court extended, and such
other notice issued as will supply any defect in the previous
notice, and give reasonable time and opportunity for all
persons interested to appear and answer. At or before the
time fixed by notice any person claiming an interest in the
intoxicating liquors or other property seized may file his
answer in writing, setting up his claim thereto, and shall
thereupon be admitted as a party defendant to the proceedings
against such liquor or other property. The complaint and any
answer or answers that may be filed shall be the only
pleadings required; and at the time fixed for answer, or at
any other time then to be fixed by the court, a trial shall
be had in a summary manner before the court of the
allegations of the complaint against the liquors, or other
property seized; and whether any answer shall be filed or
not, it shall be the duty of the city attorney to appear and
adduce evidence in support of such allegations.
"'SEC.
9. If the court shall find that said intoxicating liquors or
other property, or any part thereof, were, at the time the
complaint was filed, being used in maintaining a common
nuisance, he shall adjudge forfeited so much thereof as he
shall find was being so used, and shall order the officer in
whose custody it is to publicly destroy the same; so much of
said intoxicating liquor or other property as the court shall
not find to have been used in maintaining a common nuisance
he shall order returned by the officer in whose custody it is
to the place, as nearly as may be, from which it was taken,
or delivered to the person establishing his claim to the
same. If the court shall find that any of the liquors or
other property was at the time the complaint was filed being
used in maintaining a common nuisance, and shall also find
that it was being so used by any person served with the
notice provided for in the previous section of this
ordinance, or by any person filing an answer, as in said
section provided, or that it was then owned by any such
person, and by him knowingly allowed to be so used, the court
shall render judgment against such person for the costs of
the proceedings against the intoxicating liquors or other
property so used or owned by him. If the court shall not find
that any of said intoxicating liquors or other property
seized was, at the time the complaint was filed, being used
in maintaining a common nuisance, or shall not find that any
of it was being so used or so owned and allowed to be used,
by any person served with the notice aforesaid, or
voluntarily becoming a party as aforesaid, the costs of the
proceedings against such property shall be paid as in other
criminal cases. Either the city or any defendant or other
person claiming the property seized may appeal from the
judgment of the police judge in any such special proceeding
against property seized. Any claimant of such property who
appeals must, within ten days, enter into an undertaking with
two or more sureties to the city of Topeka, to be approved by
the police judge, in a sum of not less than one hundred
dollars, nor less than double the costs adjudged against him,
conditioned that he will prosecute his appeal without
unnecessary delay, and that, if judgment be rendered against
him on appeal, he will satisfy the judgment and costs. No
bond shall be required for an appeal by the city, and such
appeal shall stay the execution of the judgment.'
"Wherefore,
said defendant prays for a return of said property to said
defendant, or judgment for the value thereof, and for
costs."
