White v. Haworth
| Decision Date | 05 April 1886 |
| Citation | 21 Mo.App. 439 |
| Parties | WARNER WHITE, Appellant, v. N. F. HAWORTH, Respondent. |
| Court | Kansas Court of Appeals |
APPEAL from Moberly Common Pleas Court, HON. G. H. BURCKHARTT Judge.
Reversed and remanded.
The case and facts are stated in the opinion of the court.
BEN. T HARDIN, for the appellant.
I. The charter of the city of Moberly gives no power to the council to pass the ordinance in question. Laws 1873, p. 328, subdiv. 18; Ib. p. 329, subdiv. 23; 1 Dill. Mun. Corp. (3 Ed.) sects. 150, 345, 348; Corrigan v. Gage, 68 Mo 541.
II. Plaintiff had a right to the whole of the five days to redeem. Brackett v. Brackett, 61 Mo. 223; Hart v. Walker, 31 Mo. 26. And the ordinance does not authorize the officer to advertise the sale before the expiration of the five days, thereby making the three days of advertising " a part and portion" of the aforesaid findings. Same authorities, and Bank v. Jacobs, 73 Mo. 35; Bank v. Marlow, 71 Mo. 618; Smith v. Best, 42 Mo. 185.
III. " The right to denounce a forfeiture against animals running at large in a town or city, contrary to the provisions of ordinances forbidding it, must be plainly conferred, or it will not be held to exist. It must be by express words to that effect. " 1 Dill. Mun. Corp. (3 Ed.) sects 345-350.
IV. Where a party sets up a pretension to sell the property of another, in such a manner as will work a divestiture of title without judicial process, he must show that he has strictly pursued the power conferring the right. Fowler v. St. Joseph, 37 Mo. 237.
This is an action of replevin to recover certain hogs. The facts of the case are, briefly, as follows: By ordinance of the city of Moberly, provision is made declaring hogs running at large to be a nuisance, and authorizing the city officer to take the same up and impound them. Section two of this ordinance provides that: " When any hog is thus taken up, the owner thereof may redeem the same within five days by proving * * * the ownership, and paying the costs of impounding the same; and it shall be lawful, etc., for the street commissioner * * * to sell the same at auction to the highest bidder for cash, after having given three days' notice by handbills," etc.
Under this ordinance the plaintiff's hogs, consisting of a so?? and several shoats, were taken up and impounded. The evidence shows that the sow was so impounded on the fourteenth day of the month, and the shoats on the seventeenth day, and they were sold on the twenty-fourth day of the month.
On this state of the proof, the court refused to give the following declaration of law asked by plaintiff:
" The court declares the law to be in this case, that unless the hogs in controversy were kept in the pound by the city authorities of the city of Moberly five whole days before they were advertised for sale, and that the notice of sale put up was up and remained up three whole days after the expiration of the five days, and before the sale, then a sale under such impounding and notice was illegal and void; and the purchaser took no title under such sale, and the verdict must be for plaintiff."
Of its own motion, the court declared the law as follows:
" It is not necessary under the ordinance of the city of Moberly in relation to hogs running at large, that prior to the sale they shall be advertised for three days after the expiration of the five days mentioned in the ordinance, but the three days' advertisement may be a part and portion of the aforesaid five days; and, all else being regular,...
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