(concurring in part and dissenting in part).
I concur with most of what was said in the majority opinion; however, I disagree with a part of the result. The majority opinion contains an accurate and orderly synopsis of the pertinent parts of the statutory act in question. I agree with the construction of the law as set forth in the memorandum. I agree that the procedure provided by the statutes is one in rem in which the highway commissioner may be the plaintiff and the vehicle is both the res and the defendant. The proceeding was commenced in accordance with the terms of the statute. The vehicle was impounded and this was followed by the preparation and filing of a civil complaint for the purpose of recovering charges for the extraordinary use of the highway. A copy of the complaint was served upon the driver or person in charge of the vehicle, and a copy was also served upon the owner of the vehicle. The court’s jurisdiction was complete. It had possession of the res and the service of the complaint had been made upon the persons designated by the statute.
I agree that under the provisions of the statute the vehicle must remain impounded until a cash bond is furnished. The statute makes no provision for a surety or a personal bond. However, the record does contain a document in the nature of a surety bond, the salient parts of which are set forth in the majority opinion. The record discloses no other appearance by the principal named in the bond, L & M Truck Service, Inc., nor does the record contain an order of the court approving or accepting the bond, or authorizing or ordering the release of the impounded res. The principal named in the bond was not substituted nor impleaded as a party to the proceeding and it makes no further appearance in the proceeding whatsoever.
Subsequent to the filing of the bond, the defendant, which is the res, by and through its attorneys, answered the plaintiff’s complaint. Through its attorneys the res also stipulated the facts and that the matter could be presented to the court upon the pleadings and the stipulation, and without a hearing in open court. The matter was thus presented. The parties filed their briefs and the court made its decision.
In the complaint the plaintiff prayed for a money judgment in a specific amount and for an order of the court directing the confiscation and sale of the vehicle. By its stipulation the defendant admitted it had traveled upon the highway, as described in the complaint, at a weight in excess of the legal limit by 14,530 pounds. It also stipulated that it had been impounded. By its admission of facts in the form of the stipulation, it admitted all of the necessary allegations of the complaint to subject it to a charge for the extraordinary use of the highway.
Using the schedule of charges set forth in the statute, there remained only the application of simple arithmetic to determine the amount. The court made this simple computation and ordered judgment to be entered against the defendant vehicle in the amount of $872.40, plus costs. In that manner it assessed the charges for the extraordinary use of the highway. The court, however, did not order the confiscation and sale of the vehicle, although this is prayed for in the complaint.
The court also ordered “that said Plaintiff is entitled to have the amount of such judgment paid from the bond posted with the Clerk of District Court.” The court had concluded that plaintiff was entitled to have the judgment rendered against the defendant vehicle paid from the bond, which had been posted by its owner, the L & M Truck Service. This bond was in the form of a surety bond. The court overlooked the provision in the act providing only for cash bond and that the surety bond filed was not the bond of the defendant vehicle. The court had no jurisdiction over the principal named in the surety bond as it was not a *183party to the proceeding. That part of the judgment providing that the judgment shall he paid from the bond posted is void. This should not necessarily result in making void that part of the judgment assessing the charges and costs against the defendant vehicle for the extraordinary use of the highway. The court by its judgment did not provide for a release of the res. It specifically ordered judgment against the res for the amount assessed. This was followed by entry of judgment against the res in the proper amount.
I feel that the judgment is valid as an assessment of the charges. I feel the court, upon discovering its error and impropriety, may order the confiscation intended by the statutes and also order the sale of the vehicle, the proceeds to be applied to the payment of the charges and costs assessed .under the provisions of the law.
The defendant vehicle appealed to this ■court from the judgment. L & M Truck Service has not appealed. They are not parties to the action.
The defendant vehicle did not appear specially to move for dismissal on the ground that the court had lost jurisdiction over it. Special appearance was necessary for this purpose as it occurred before the adoption of the North Dakota Rules of Civil Procedure. The defendant vehicle’s part throughout the proceeding was consistent with the proposition that the court had jurisdiction over it.
This is a proceeding in rem, and jurisdiction is dependent upon possession of the res. Jurisdiction was acquired by a valid seizure .and actual control of the res. Jurisdiction should not be destroyed by an improper removal of the res, or by a delivery to a third party of the res upon an unauthorized security, and without the order of the court and contrary to the provisions of the statutes.
The act involved appears to have no predecessor in statutory civil law. However, the distinguishing and characteristic feature of admiralty jurisprudence is that the suit is in rem. It is a mode of proceeding that had its origin in civil law. 1 Am. Jur., Admiralty, Sec. 13.
In admiralty, the vessel or • thing proceeded against is seized and impleaded as the defendant, and is judged and sentenced accordingly. 1 Am.Jur., Admiralty, Sec. 82.
In admiralty, when jurisdiction is acquired by a valid seizure, actual control of the res is not destroyed by an improper removal of the res, or a delivery to the party upon security, or upon an order in violation of statute. 1 Am.Jur., Admiralty, Sec. 83; 2 C.J.S. Admiralty § 49b and § 55.
The statutory provisions under consideration in this case appear obviously to be premised on similar legal theory as the admiralty statutes. Therefore, it would appear proper in this case to apply the theory of law applied to admiralty statutes by the admiralty courts. The nature of the res, vessels as compared with trucks, is similar. Both move from place to place with great freedom, from one jurisdiction to another, appear and depart to and from various jurisdictions without the presence of their owners, and both serve the purpose of transporting property and persons. They provide a means of transportation appertaining to travel or trade and commerce on land.
Because the court had not lost jurisdiction of the res, it continues to have jurisdiction in rem. It is true the judgment does not provide for the confiscation and sale of the vehicle as directed by the act,, but this omission on the part of the court can be corrected on this appeal, the case being before us for trial de novo. The lower court has assessed the charges and the costs correctly.
I feel, therefore, the judgment of the district court should be modified to provide for the confiscation and sale of the defendant vehicle by the sheriff of the county at *184a public sale to the highest bidder and the proceeds applied to the payment of the charges and costs adjudged, unless the same is paid immediately in cash as is provided in Section 8 of Chapter 257 of the Session Laws of North Dakota for 1955.
SATHRE, C. J., concurs.