Opinion
34243.
DECIDED OCTOBER 8, 1952.
Trover; from Colquitt Superior Court — Judge Lilly. June 23, 1952.
Briggs Carson Jr., for plaintiff in error.
Peter W. Walton, contra.
1. Where, as here, a sheriff or other peace officer of this State seizes a vehicle because of its alleged use in conveying illegal liquor for condemnation under the Code (Ann. Supp.), and fails to report the property seized to the prosecuting attorney of the court having jurisdiction of the case within ten days after such seizure in compliance with the statute, such seizing officer is a mere trespasser and as such liable in trover to the owner of the property seized.
2. ( a) Where such State officer upon seizing the vehicle, instead of reporting its seizure to the prosecuting attorney as required by the State statute, turns it over to the Federal Government for condemnation under Title 26 U.S.C.A., § 2803, he does so at his peril as a private citizen seizing private property for forfeiture to the Federal Government.
( b) If such seizure proves to be unlawful, such officer is liable to the aggrieved party in trover.
( c) Where, however, such State officer turns the property over to the proper Federal authorities for condemnation in the Federal court in a proceeding regular on its face of which the owner of the vehicle had due notice of the time and place of the trial thereof, the act of the State officer in turning the property over to the Federal Government for condemnation is thereby ratified by the Federal Government and such adoption on its part is sufficient recognition and confirmation of the seizure to give it an equal validity in law with an original seizure under proper authority by an agent of the Federal Government. Under these circumstances such judgment by the Federal court is conclusive on the owner of the property.
( d) This ruling is not affected by the fact that the plaintiff in this trover action was acquitted on criminal charges of possessing and transporting liquor growing out of the same transaction.
3. The verdict in favor of the defendant being demanded by the evidence in this case, errors in the charge of the court and the admission of evidence would be immaterial, for which reason the special grounds of the amended motion for a new trial are not here passed upon.
DECIDED OCTOBER 8, 1952.
Milan Kitchens filed a bail-trover proceeding against O. L. Beverly, Sheriff of Colquitt County, in the Superior Court of Colquitt County, to regain possession of a Ford automobile. The defendant answered, setting up as a defense to the action that he had turned the property over to a representative of the Alcohol Tax Unit of the United States Treasury; that in due course the automobile had been forfeited to the U.S. Government in a condemnation proceeding under section 3724 of the Federal Internal Revenue Code, and that it was thereafter delivered to the Alcohol Tax Unit, U.S. Treasury, pursuant to said proceedings.
Upon the trial of the case the jury was required to find facts substantially as follows: That the plaintiff in this action was arrested, tried and acquitted of the offense of possessing non-tax-paid liquor in the City Court of Colquitt County; that he was also placed on trial in the U.S. district court for the offense of transporting non-tax-paid whisky, and that, after the evidence of the United States was introduced the case was nol. prossed; that the same facts which led to his arrest led to the seizure of his automobile in Tift County, Georgia, but that shortly thereafter the car was turned over to the defendant in this case who came to Tift County and took possession of it; that the defendant, within three or four days after the seizure of the automobile, turned it over to J. O. Stewart, investigator for the Alcohol Tax Unit, U.S. Treasury Department; that forfeiture proceedings were instituted under 26 U.S.C.A. § 3724; that the property was advertised and that the plaintiff received actual notice of the proceedings; that the property was appraised at under $500 and was turned over to the Atlanta alcohol tax unit for its use as is provided for in such proceedings; that the plaintiff did not appear or file a claim in the condemnation case and that the proceeding thereunder was regular on its face.
The jury returned a verdict for the defendant. The plaintiff filed a motion for a new trial on the general grounds which was later amended by the addition of five special grounds, and the overruling of this motion is assigned as error.
1. Under Code (Ann. Supp.) § 58-207 a sheriff or other peace officer must report property seized because of its use in conveying illegal liquor, to the solicitor of the court having jurisdiction of the case within ten days after such seizure, and thereupon condemnation proceedings will be instituted as set forth in that Code section. When the seizure is effected contrary to this provision, and the sheriff attempts to hold the vehicle in excess of ten days without reporting the same, he is, as to the plaintiff's property, a mere trespasser, and a trover action will lie against him for the recovery of the property. Bowman v. Davis, 51 Ga. App. 478 ( 180 S.E. 917). See also Williams v. McDaniel, 80 Ga. App. 614 ( 56 S.E.2d 926).
2. However, the State of Georgia, under Code (Ann. Supp.) § 58-207, and the United States Government, under 26 U.S.C.A.§ 2803, have concurrent jurisdiction, and each has the power and authority to seize and condemn automobiles used in illegally transporting liquor. As to actions in rem, which these are, between the State and Federal court, the one first taking steps equivalent to exercising dominion over and possession of the res will have exclusive jurisdiction as to the case. Davis v. Shropshire, 203 Ga. 434 (1) ( 46 S.E.2d 911). The defendant here, being a county sheriff, was in no way connected with the Federal Government, and had no right, by reason of his office, to turn the property over to Federal authorities instead of making a report to the proper State officer in conformity with the provisions of Code (Ann. Supp.) § 58-207. If his action in turning the automobile over to Federal authorities is any defense to this action, it is only a defense common to all private citizens, rather than one acquired by virtue of his office. If his action constituted a trespass, his liability in an action by the party aggrieved by the unlawful seizure is not affected. See Cardinel v. Smith, 5 Fed. Cas. 45; North Carolina v. Vanderford, 35 Fed. 282. At common law, any person, at his peril, might seize for a forfeiture to the Government. Gelston v. Hoyt, 16 U.S. 246 ( 4 L. ed. 381). And it was further held by the United States Supreme Court in The Caledonian, 17 U.S. 100 ( 4 L. ed. 523), that anyone might seize property forfeited to the Government under its laws, and if the Government adopts the seizure by forfeiting under appropriate procedure, this is a sufficient recognition and confirmation of the seizure, and gives the seizure an equal validity in law with an original seizure under authority.
The fact that the plaintiff here was tried and acquitted in the criminal proceedings brought against him arising out of the same circumstances does not in itself show that the forfeiture proceedings were invalid. Grant v. State, 74 Ga. App. 493 ( 40 S.E.2d 406); In re Certain Chevrolet Automobile Bearing New Jersey Registration IV-42 N.J., 47 F. Supp. 843; Neal v. First National Bank, 195 Okla. 398 ( 158 P.2d 336). The rulings in Grant v. State, supra, and Duncan v. State, 149 Ga. 195 ( 99 S.E. 612), that evidence of such acquittal was admissible, dealt with the admissibility of such evidence in the trial of a claim in the forfeiture proceedings, rather than its admissibility in a subsequent civil action. As held in Neal v. First National Bank, supra, a forfeiture under § 3724 of the Internal Revenue Code may properly be pleaded and proved as a defense to an action for conversion brought against State law-enforcement officials who first seized the property and without authority turned it over to Federal authorities.
This is not to be construed to hold that such an action would not lie against an officer of this State who thus acts as a private citizen in seizing a vehicle, or against any other citizen in so doing, who, after so doing, fraudulently concealed the fact from the owner that it had been turned over to the Federal Government for forfeiture, and where the judgment of condemnation in the Federal court is entered without such owner having actual knowledge of the fact that such vehicle was being condemned. Nor is the decision here to be construed as affecting the liability of the surety of such peace officer, although such peace officer is here held to be performing the act of a private citizen, as this case does not deal with acts of an officer under color of his office. Nor does it hold that such owner would be precluded from making a proper attack on a void judgment of condemnation. See in this connection Merrimac Mutual Fire Ins. Co. v. Vaughn, 68 Ga. App. 84 ( 22 S.E.2d 188). The decision holds merely that where any person other than the proper Federal law-enforcement officials seizes private property and turns the same over to such officials for condemnation, his act in so taking the property will be protected only to the extent that it is adopted and ratified by the Federal Government in subsequently condemning the same under appropriate procedure. The evidence here demanded a finding that the Federal Government had so acted, and had thereby given the seizure an equal validity in law with an original seizure under authority, for which reason the defendant here was not liable for a conversion of the Ford automobile.
3. The special grounds of the amended motion for a new trial are not passed upon since, in view of what is said in the foregoing division of this opinion, errors in the admission of evidence or the charge of the court would not affect the outcome of the case.
Judgment affirmed. Gardner, P.J., and Carlisle, J., concur.