State v. Riley
| Citation | 276 S.W. 884 |
| Decision Date | 22 October 1925 |
| Docket Number | No. 3995.,3995. |
| Parties | STATE ex rel. WAHL v. RILEY, Judge. |
| Court | Court of Appeal of Missouri (US) |
Sharon Pate and Von Mayes, both of Caruthersville, for relator.
Sam J. Corbett, Pros. Atty., and McKay & Peal, all of Caruthersville, for respondent.
This is an original proceeding in this court, asking that we prohibit Hon. H. C. Riley, judge of the circuit court of Pemiscot county, from further proceeding to enforce a temporary restraining order issued by him as such judge against relator, J. S. Wahl.
The facts which we gather from the petition of relator and the return of the respondent to our preliminary rule are as follows: On April 8, 1925, a search warrant was issued, and under it the sheriff of Pemiscot county searched an automobile found in the possession of one John Jaynes, and found therein about 20 gallons of whisky. The sheriff took possession of the whisky and the automobile, and left the automobile in the custody of one A. J. Dillman for safe-keeping. The sheriff then filed with the prosecuting attorney of the county a list and description of the property seized, including the automobile. The prosecuting attorney filed a criminal charge against said John Jaynes, which is still pending, and also filed a suit in the circuit court of the county against said John Jaynes, by which it was sought to condemn the automobile as a nuisance and to secure the judgment of the court directing the sale of the automobile and the application of the proceeds as provided in the Acts of 1921, pp. 414, 415, and Acts of 1923, pp. 240, 241. The relator, J. S. Wahl, held a chattel mortgage on the automobile to secure an indebtedness which was at the time past due. He instituted, in the circuit court of Pemiscot county, an action in replevin against the sheriff and A. J. Dillman, to secure possession of the automobile under his chattel mortgage, to the end that he might foreclose his mortgage. After this suit in replevin was filed, and on the last day of the July, 1925, term of the circuit court of Pemiscot county, the petition in the nuisance proceeding was amended by making relator, J. S. Wahl, a party defendant, and a temporary restraining order was issued on the application of the prosecuting attorney and without bond, which had the effect to restrain said Wahl from prosecuting his action in replevin until after the nuisance case should be fully determined. The relator then began this proceeding in this court to prohibit the enforcement of that temporary restraining order. In the amended petition filed by the prosecuting attorney in the nuisance case, it was alleged that relator, Wahl, claimed to be the legal owner of the automobile by reason of the chattel mortgage given to him thereon by John Jaynes, who was the party found in the possession of the automobile when it was searched, and that said Wahl knew that Jaynes was using the automobile for the purpose of violating the provisions of the statute relative to intoxicating liquor.
Section 14, p. 240, Acts of 1923, provides that, if in the execution of a search warrant there should be found secreted in, on, or upon, any wagon or other means of transportation, in violation of any law of this state, any intoxicating liquor in excess of one pint, such wagon or other means of conveyance shall be deemed a nuisance, and the officers serving the search warrant shall file with the prosecuting attorney a description of the wagon or other vehicle, and a statement of the amount and character of the intoxicating liquor found in or on the vehicle, then it is made the duty of the prosecuting attorney to proceed as provided by law for the abatement of a nuisance. Section 15, on page 241 of the same act, provides that, when any property has been adjudged a nuisance in connection with a violation of the law concerning intoxicating liquors, the court may declare all right and title of the owner forfeited, and order the property sold and the proceeds disposed of as therein further provided. Acts 1921, pp. 414, 415, provides the procedure by which this judgment of forfeiture and order of sale may be secured.
It is admitted on the face of the pleadings that the procedure provided for in the statute was being followed. That being true, the following legal propositions are involved:
First. Does the term "owner,"...
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