Wyman v. Turner
| Decision Date | 09 January 1896 |
| Docket Number | 1,831 |
| Citation | 42 N.E. 652,14 Ind.App. 118 |
| Parties | WYMAN v. TURNER |
| Court | Indiana Appellate Court |
From the Washington Circuit Court.
Judgment reversed, with instructions to grant a new trial.
Alspaugh & Lawler and J. H. Masterson, for appellant.
Elliott & Hostetter, for appellee.
OPINION
Appellant sued to recover certain hogs which she alleged were unlawfully detained from her by appellee. Appellant's ownership was not seriously controverted, but appellee, who was a road supervisor, bases his claim to hold the hogs upon section 2838, R. S. 1894, and preceding sections under which he had taken them up while running at large. By said section 2838 it is made the duty of the supervisors to take up all horses, mules, cattle, sheep, goats or swine found running at large upon the road, commons or uninclosed lands within their respective districts which are not authorized to run at large by a proper order of the county commissioners.
By section 2834, R. S. 1894 (section 2640, R. S. 1881) "The person taking up and impounding any such animal shall immediately give notice in writing to the owner of such animal, if known to him."
Part of the hogs in controversy were seized by the supervisor on October 24th, part on October 25th. Upon the evening of the latter day, the supervisor sent to Charles Wyman a written notice directed to him, notifying him that said Turner had taken up nine hogs, describing them, believed to belong to said Charles Wyman, who was thereby called upon to come and pay the charges and reclaim the hogs.
On October 26th, Charles Wyman went and saw the hogs and told appellee they were his mother's. Several days after this appellant sent Charles and another after the hogs, and offered some pay, but not the statutory charges, whereupon appellee refused to surrender the property.
There is evidence that Charles Wyman looked after his mother's business and was a married man, living with his family upon his mother's farm, where she also resided; that the hogs had been kept upon appellant's farm; that she had no knowledge of the seizure until several days thereafter, when she learned the fact from her son or his wife.
The sufficiency of this notice is called in question.
It was said by this court in Forsyth v. Walch, 4 Ind.App. 182, 30 N.E. 720, that In that case a posted notice was held insufficient because it failed to set forth that the owner's name was unknown. The principle announced in that case is supported by an unbroken line of decisions of the supreme and appellate courts. James v. Fowler, 90 Ind. 563; Nafe v. Leiter, 103 Ind. 138, 2 N.E. 317; Jones v. Clouser, 114 Ind. 387, 16 N.E. 797; Haffner v. Barnard, 123 Ind. 429, 24 N.E. 152; Frazier v. Goar, 1 Ind.App. 38, 27 N.E. 442.
In James v. Fowler, 90 Ind. 563, it was said that the "appellees, as owners of the hogs, were entitled to their possession, unless the appellant (who had lawfully taken up the hogs as trespassing estrays) could show that, by a strict and continuous compliance with the requirements of the statute, he had not only acquired, but at the commencement of this suit still retained an existing right to their possession as estrays."
In Burton v. Calaway, 20 Ind. 469, there being a replevin suit by the owner without bond, it was held that the taker-up should have proceeded to advertise and sell the animal at public sale as required by law; that the pendency of the suit did not absolve him from the duty of following the statutory course, and that the failure to so do and his selling the animal at private sale pending the suit made him a trespasser ab initio.
In Nafe v. Leiter, supra, the court decides that hogs trespassing and running at large in a partially enclosed field are not running at large upon uninclosed lands within the purview of the statute. Section 2833, R. S. 1894 (section 2639, R. S. 1881.)
In Jones v. Clouser, supra, the court by Elliott, J., held that where one took up trespassing cattle and refused to deliver them except upon payment of a sum, to which he was not by law entitled, he could not afterwards, when sued in replevin, justify their detention upon some other ground, the learned judge saying, in conclusion, "The person who seizes domestic animals under statutes such as that under consideration is bound to strictly conform to the law, and can only detain them for causes provided by statute."
In Haffner v. Barnard, supra, notice was given under sections 6554 and 6556, R. S. 1894, being sections 4838 and 4840, R. S. 1881, the latter of which specifies that the notice should contain a statement of the trespass and the amount of damages. It was held not to be good because it failed to contain these facts.
It is also there said, "Laws of this character are construed strictly against the party claiming the benefit thereof, and he must follow their provisions closely or lose all benefit therefrom." The court, therefore, held the person taking up liable to replevin even without demand, his possession being wrongful in the absence of a compliance with the statute.
In Frazier v. Goar, supra, an answer in justification under section 2833, R. S. 1894, section 2639, R. S. 1881, was held bad because it failed to show that the defendant was a resident of the township when he took up the animal, although it did aver he was such resident at the time he filed the answer thirty-four days later.
Other cases declare that animals which merely escape from their owners and are promptly pursued, cannot be regarded as running at large within the meaning of the statute. Jones v. Clouser, supra; McBride v. Hicklin, 124 Ind. 499, 24 N.E. 755; Wolf v. Nicholson, 1 Ind.App. 222, 27 N.E. 505; Chicago, etc., R. R. Co. v. Fenn, 3 Ind.App. 250, 29 N.E. 790.
The principle of strict compliance enjoined and established by these repeated decisions, compels us to refuse to accede to appellee's proposition, that this notice was good because directed to and served on one who was appellant's agent, but not directed to him as such agent. Were it only requisite that knowledge should be brought home to appellant as in the commercial transactions referred to by some of the authorities cited by appellee, the position might be well founded, but here one claims a penalty by virtue of the statute. In order to maintain his right thereto, substantial compliance with the statute is requisite. It appearing that he failed to make this compliance his alleged right falls to the ground.
In the Haffner v. Barnard case, it is plain the owner had knowledge that his hogs had been taken up and were in the possession of the taker-up; yet the court held the owner entitled to recover because the notice was not such as was called for by the statute.
The owner's appearance and demand for the hogs could not operate as a waiver of appellee's failure to conform his conduct to the statute. It is that very failure which makes him a wrongdoer and justifies the demand.
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