Elizabeth Mozley prosecutes this appeal to reverse a judgment of the district court of Cotton county rendered against her in favor of S.C. Coleman, sheriff of Cotton county. The cause was tried to the court upon the following agreed statement of facts:
"It is hereby stipulated and agreed by and between the parties hereto, that the following statement comprises the facts concerning and governing the above-entitled action, and that the same shall be so considered by the court in determining the rights of the parties under the law as applicable to such facts. Subject to objection only as being incompetent, irrelevant, or immaterial.
"That on March 23, 1917, the plaintiff. Elizabeth Mozley, was the owner of one certain 6-40 automobile, 1917 model, of the value of six hundred twenty-five dollars, mentioned in plaintiff's petition and hereinafter referred to as said car.
"That on said day, said car was in the county of Cotton, state of Oklahoma, in plaintiff's possession, being driven by plaintiff's husband, Floyd Mozley.
"That on said day defendant, said S.C. Coleman, as sheriff of Cotton county, seized the automobile mentioned in said petition, without warrant, while it was being used in his presence for the purpose of conveying 75 gallons of whiskey from one place in said county to another place therein, in violation of the prohibitory laws of the state of Oklahoma; that the defendant, Coleman, immediately made his return of the said property to the county court of said county, which court immediately made an order requiring the said sheriff to hold the said property until further order of said court, and which court thereafter, on April 18, 1917, rendered judgment in the proceeding instituted by the filing of said return, wherein said automobile was adjudicated to be forfeited and confiscated to the state of Oklahoma, and ordered turned over by the said defendant to the county commissioners of said county to be disposed of according to law; that on April 5, 1917, Lloyd Weaver filed his plea of intervention in the proceedings above mentioned, demanding possession of the said car, by virtue of a mortgage held by him on said car for the sum of three hundred and fifty dollars; that before the said judgment was rendered, the mid intervener, through his attorneys and the county attorney of said county, submitted the issues joined by the intervener to the court on an agreed statement of facts, which were disposed of by the said judgment of the court of April 18, 1917; that no appeal was taken from said judgment as allowed by law, whereupon the said defendant, acting under and by virtue of said judgment, turned the said automobile over to the said commissioners, who thereafter sold the same on the 6th day of August, 1917, at public sale, for the sum of $625; that plaintiff, after the seizure and return of sheriff and prior to the judgment of forfeiture, was informed of the seizure and cause thereof and the nature of the proceedings.
"That plaintiff did not consent to the seizure nor the sale of said car, but did not file any plea of intervention, nor did she bid in the car at the sale, nor did any one bid it in for her or in her behalf. When plaintiff was informed by the county judge of the said seizure, the cause thereof, and her remedy prescribed by law, she stated that they were not going to intervene, but were going to leave that matter to the mortgagee who would protect their interest; that by reason of such taking and sale the car has become lost to the plaintiff.
"It is further agreed and stipulated between the parties that the action shall be and hereby is submitted to the court upon the pleadings filed herein and this agreed statement of facts.
"Dated this 6th day of January. *Page 120
"Charles O. Black, "Attorney for Plaintiff.
"E.L. Richardson, "Attorney for Defendant."
Upon an examination of the record in this case, we are clearly of the opinion that the judgment of the trial court must be reversed.
This court, in the case of One Cadillac Automobile v. State,68 Okla. 116, 172 P. 62, held that under section 3617, Rev, Laws of 1910, an automobile used in the unlawful conveyance of intoxicating liquors was not subject to seizure and forfeiture to the state.
In the case of One Hudson Super-Six Automobile v. State, 70 Oklahoma, 173 P. 1137, in the second paragraph of the syllabus, this court hold:
"An automobile used prior to the enactment of chapter 188, Session Laws of 1917, p. 352, for the unlawful transportation of intoxicating liquors, is not subject to seizure and confiscation therefore."
In the case of State v. One Ford Automobile, 73 Oklahoma,174 P. 489, the claimant filed a motion to dismiss the forfeiture proceedings instituted in the county court upon the ground that the court was without jurisdiction to enter a judgment forfeiting an automobile. The trial court sustained the motion, and the state appealed the cause to this court. This court affirmed the judgment of the trial court, and held that the judgment of the trial court was correct.
In the case of the State National Bank of Ardmore v. State, 70 Oklahoma, 172 P. 1073, this court held:
"Prior to the enactment of chapter 188 of the 1917 Session Laws of the state of Oklahoma, there was no legal authority for the seizure and confiscation of an automobile used for the unlawful transportation of intoxicating liquors."
The rule announced in these cases was approved in the case of Sharp et al. v. State, 72 Oklahoma, 181 P. 293, in an opinion by Mr. Justice McNeill, as follows:
"The seizure in this instance having been made prior to the taking effect of the act approved March 24, 1917, it is held by the former opinions of this court that there is no authority under section 3617, Rev. Laws 1910, to justify the seizure and confiscation of an automobile, although it had been used in an unlawful conveyance of intoxicating liquor."
In the case of Hess et al. v. State, 84 Okla. 73,202 P. 310, this court held that the forfeiture of property alleged to have been used in violation of the prohibitory laws of the state is a statutory proceeding, and a court cannot acquire jurisdiction of property sought to be forfeited except in the manner proscribed by the statute.
In the case of Roth v. Union Nat. Bank of Bartlesville et al., 58 Okla. 604, 160 P. 505, this court approved the rule announced by 1 Bailey on Jurisdiction, as follows:
"A court must ordered and determine within the limits of the dower conferred. If it renders a judgment in an action or proceeding, where jurisdiction has attached, that it was not authorized or empowered to render at all, such judgment or decree is in excess of its jurisdiction, and for that reason a nullity."
It is obvious, under these decisions, that the attempted forfeiture of the car in question was without statutory authority, and the court, acting without statutory authority in the premises, was without jurisdiction to enter a judgment of forfeiture, and the judgment of forfeiture, therefore, was a nullity. The defendant sheriff, acting without authority of law in seizing and taking possession of the car and proceeding to have the same converted to the use of the county, thereby unlawfully and wrongfully depriving the owner of the property, is guilty of conversion and civilly liable for the value of the car.
This court, in the case of Bilby v. Jones, 89 Okla. 613,186 P. 414, held:
"Conversion is any distinct act of dominion wrongfully exerted over another's personal property in denial of or inconsistent with his rights therein."
Other authorities to the same effect are: Probst v. Bearman,76 Okla. 771, 183 P. 886; McClintock v. Parish, 72 Oklahoma,180 P. 689; Mercantile Co. v. Fitch, 22 Okla. 475,99 P. 1089; National Bank of Commerce v. Jackson, 69 Oklahoma,170 P. 474; Irwin v. Walling, 4 Okla. 198, 44 P. 219; Mann v. Ridenhour, 46 Okla. 565569, 149 P. 124; Taylor v. Smith,44 Okla. 404, 144 P. 1028; Velzian v. Lewis (Ore.) 3 Am. St. Rep. 184-188, and notes, 16 P. 631; Flanders v. Colby, 28 N. H. 34; Cooley on Torts, 534, 538, 688; Boyce v. Brockway, 31 N. Y., 490; Morrill v. Moulton, 40 Vt. 242; Harker v. Dement (Md.) 52 Am. Dec. 670-680.
Counsel for the defendant in this case concede there was no authority under the law authorizing the seizure and confiscation, of the car, but contend, because the plaintiff stated to the sheriff that the mortgagee would intervene in the forfeiture proceedings *Page 121 and claim the car, that the plaintiff is now estopped from maintaining this action. The case of Glacken v. Andrew, 69 Oklahoma, 169 P. 1096, is relied on as supporting the contention of counsel for the defendant. We are unable to concur with counsel in their contention, that the plaintiff is estopped from maintaining this action. The facts in the case of Glacken v. Andrews, supra, are distinguishable from the facts in the case at bar, in that the plaintiff in that action had been a party to the forfeiture proceedings, and the court held that the plaintiff, having been a party to the trial, he was bound by the judgment. In the instant case the plaintiff did not intervene in the forfeiture proceedings, and it is unnecessary to a decision in this cause to determine whether she would have been bound by the judgment of forfeiture had she intervened in the action. It is a well-established rule that as an indispensable prerequisite to the validity of a judgment the court must have had jurisdiction of the subject-matter of the action. Winona Oil Co. v. Barnes. 83 Okla. 248, 200 P. 981; Pennoyer v. Neff, 95 U.S. 714, 24 I. Ed. 565; Pettis v. Johnston, 78 Okla. 277, 190 P. 681.
This court, in the case of Ex parte Plaitridge, 68 Okla. 25,173 P. 646, held, a court of competent jurisdiction is one having power and authority of law at the time of acting to do the particular act.
The owner of property cannot be divested of it but by his own consent or by operation of law. Williams v. Merle, 11 Wend. (N. Y.) 80, 25 Am. Dec. 604.
The judgment of a court, to be effective in depriving one of his property, must have jurisdiction. A judgment without jurisdiction is not due process of law. Scott v. McNeill,154 U.S. 32.
The fact that the county court had jurisdiction to hear and determine the right of the state to forfeit certain kinds of property seized by an officer used in violation of the prohibitory laws of the state, does not sustain the contention that the plaintiff in this action is estopped from asserting her right to recover the value of property seized without authority of law and sold under a judgment void for want of jurisdiction. It is true the county court had jurisdiction to determine the right of the state to forfeit certain kinds of property, but the attempted forfeiture of property not authorized by the statute is without authority of law, and a court acting without jurisdiction is without power to enter a valid decree.
The rule has been repeatedly announced that an unauthorized sale by law, or without the consent of the owner, which deprives a person of personal property, is an actionable conversion. Williams v. Merle, 11 Wend. (N.Y.) 80, 25 Am. Dec. 604; Sanborn v. Coleman, 6 N.H. 14, 23 Am. Dec. 703; Whitlock v. Heard, 13 Ala. 776, 48 Am. Dec. 73; Joyce v. Sage Bros. Co.,206 Mass. 9, 91 N.E. 996.
The judgment of the trial court is reversed, and the cause is remanded to the district court of Cotton county, with direction to enter judgment in favor of the plaintiff for the value of the car, as shown by the agreed statement of facts.
HARRISON, KANE, NICHOLSON, COCHRAN, and BRANSON, JJ., concur.
McNEILL, J., dissents.