
    Walker v. Shook et al.
    1. Intoxicating Liquors: aotioh nob damages : bubden. The owner of; intoxicating liquors, suing to recover damages from an officer who had been adjudged to have no authority for their detention, must allege and prove that he owned and kept them with a lawful intent, and not for the purpose of sale contrary to law.
    2. -: -: -. The fact that the officer had been ordered by the court to return them to plaintiff did not relieve him from the necessity of making such allegation and proof.
    
      Appeal from Appanoose Circuit Cou/rt.
    
    Tuesday, October 22.
    AN information was filed before a justice of the peace charging that the plaintiff kept and sold intoxicating liquors contrary to law. A warrant was issued, and placed in the hands of the defendant Shook, who was marshal of the town of Moulton. Under and by virtue of the warrant the said defendant seized certain intoxicating liquors, which he claims to have stored in a proper place. But this was a controverted question on the trial. From the judgment rendered by the justice an appeal was taken by the plaintiff to the District Court, and at the hearing in that court the following judgment was rendered: “The case being submitted to the court, and the court being fully advised in the premises by the proofs presented, and the arguments of attorneys, finds that there is not sufficient information upon which to render judgment. The court orders this case dismissed, and the property taken under the search warrant returned to the defendant. ” The defendant Shook having failed to comply with said order, by returning the liquors to the plaintiff, this action is brought to recover the damages sustained by reason of such failure.
    There was a jury trial, and judgment rendered for the plaintiff for nominal damages and costs. The defendants appeal.
    
      
      Geo. D. Porter,- for appellants.
    
      J. G. Goad, for appellee.
   Servers, J.

The amount involved, as shown by the pleadings, being less than one hundred dollars, the trial judge, as is required by a rule of this court, has certified the questions of law “upon which it is desirable to have the opinion of the Supreme Court,” among which questions is the following: “Is it necessary, as a matter of law, for the plaintiff in this action to allege in his petition that the liquors were kept for a lawful purpose, and hot for sale contrary to law. ”

It is provided by statute “ *' * * nor shall any action be maintained for the recovery or possession of any intoxicating liquors, or the value thereof, except in cases where persons owning or possessing such liquor with lawful intent may have been illegally deprived of the same * *“. ” Code, § 1550.

This statute was in force when Sommer v. Cate, 22 Iowa, 585, was determined, and it was held in that case no recovery could be had against a carrier who failed to deliver intoxicating liquor intrusted to him, unless the plaintiff averred and proved on the trial he owned or posessed the liquor with lawful intent.

Eollowdng that decision the question above referred to must be answered in the affirmative. Such must be the necessary and logical result.

As we understand, the judgment of the District Court determined but a single question, which was that there was “not sufficient information upon which to render judgment. ” That is to say, the information filed before the justice, and on which the whole proceeding was based, was so defective or insufficient that no judgment could be rendered thereon. The court did not determine that the liquors were kept with a “lawful intent,” nor was any such question involved in the deter-ruination made. In other words, the indictment or information was bad, and no judgment could be rendered thereon.

There having been no determination as to the intent with which the liquor was kept the plaintiff, before he can recover under the statute as construed in Sommer v. Cate, must allege and prove that such intent was lawful.

The order that the liquors should be returned to the plaintiff did not vest him with any additional rights. His right to a return of the liquor would have followed, as a matter of course, the dismissal of the action. His right to recover would have been just as perfect without such order as with it. The seizure under the warrant gave the defendant the right of possession. He, therefore, was not a trespasser. If it be said he became a wrong-doer when he failed to return the liquor, as he was ordered to do by the court, still it is evident such failure must have been caused by negligence, or through a wrong intent, and such must have been true as to the carrier in Sommer v. Cate, for it appears in that case the liquor was delivered to him to be carried to and delivered at a particular place, and he failed to do so, either through negligence, or with a wrong intent.

We are unable to draw any distinction between the two eases. If the rule established in Sommer v. Cate be regarded as harsh, or, as an original proposition, that the statute was not correctly construed, still we feel bound to follow it, because of the doctrine of stem decisis, and for the further reason that such decision was made upward of ten years ago, and the construction of the statute then adopted has been acquiesced in by the legislative authority during that time. If deemed incorrect it could have been readily remedied.

We deem it unnecessary to determine the other questions certified, as we regard them as immaterial so far as a retrial is concerned.

Reversed.  