ment is reversed and the cause remanded, with directions to the district court of Yellowstone county to discharge the defendant from custody. Remanded, with directions.

EN, and STARK, JJ., concur.

STATE v. JOHNSON et al. (No. 5354.) (Supreme Court of Montana. Nov. 10, 1923.) 1. Intoxicating liquors 244-Proceedings in forfeiture held civil in nature.

Forfeiture proceedings under Rev. Codes 1921, § 11106, requiring seizure and forfeiting of liquors, fixtures, etc., used in the liquor business, are of a civil nature. 2. Intoxicating liquors 248-Forfeiture judgment based on criminal "complaint" in justice court held void.

A prohibition officer arrested a barkeeper, seized property used in the sale of liquors, and filed a complaint charging sale of liquor, which was dismissed in justice court, whereupon he filed an unverified document in district court. Held, that the judgment of forfeiture was void for lack of jurisdiction, since Rev. Codes 1921, § 11106, requiring seizure of the property and production of the offender before "a court having jurisdiction" contemplates an original civil proceeding based on a verified complaint in the district court sufficient to warrant issuance of a search warrant under section 11104; the criminal complaint in justice court being ineffective in view of section 11122 expressly authorizing the district court to hear forfeiture proceedings.

a

place for the sale of merchandise, and purchased from Dominick Johnson, one of the proprietors, a glass of intoxicating liquor, whereupon he immediately arrested Johnson, took him before a justice of the peace in Livingston, and filed a complaint charging him with the unlawful sale of intoxicating liquor. This complaint was subsequently dismissed. At the time of making the arrest Galusha took into his possession a large quantity of personal property consisting of soft drinks, tobacco, cigarettes, chewing gum, and candy, and also certain furniture and fixtures including bars, cash registers, a safe, chairs, pool tables, etc., which were in and about the premises where the sale of liquor had been made.

On the following day, January 29, 1923, Galusha filed in the office of the clerk of the district court of Park county an unverified document in which he certified that he had arrested Johnson, made complaint against him before a justice of the peace, and had taken into his possession the personal property at the time and in the manner above mentioned. On January 30, 1923, the presiding judge of the district court of Park county signed and filed an order which read as follows:

"(Title of Court.) State of Montana, Plaintiff, v. Dominick Johnson and Mickel J. Johnson, Defendants. January Term, A. D. 1923. The State of Montana to John Galusha-Greet

3. Indictment and information 3-A criminal prosecution in district court cannot be instituted by a complaint.

Under Const. art. 3, § 8, requiring prosecutions in district court by information or indictment, and Rev. Codes 1921, § 11617, requiring county attorney's signature, and section 11833, requiring grand jury action, a criminal action cannot be instituted by filing a complaint.

Appeal from District Court, Park County; Robert C. Stong, Judge.

on the 29th day of January, A. D. 1923, in the above-entitled action, wherein it is certified that you seized and took into your possession certain liquors, bars, furniture, fixtures, vessels, and appurtenances unlawfully used in connection with the unlawful sale of intoxicating liquor. You are therefore hereby commanded to hold the property inventoried in your certificate in your possession until a further order is made in this case by this court.

"Witness my hand and the seal of said court, this 30th day of January, A. D. 1923.”

tion.

STARK, J. On the 28th day of January, 1923, one John Galusha, claiming to be an

On the 16th day of March, 1923, a judg

At the time fixed for the above-named hearing, H. D. Hefferlin appeared and filed a verified claim, setting forth that he was the owner of a portion of the property which had been seized by Galusha, particularly describing the same, as well as his interest therein, and demanding the delivery of the property to him. The matter came on for hearing February 17, 1923, upon the certificate or return of John Galusha, above mentioned, and the verified claim of H. D. Hefferlin.

When the first witness was placed upon the stand, and before he had given any testimony, counsel for claimant Hefferlin objected to the introduction of any evidence in the proceeding, because→→→

"the court has not jurisdiction to hear and determine the same, for the reason that no sworn complaint has been filed herein charging the commission of any offense in the presence of the officer; that the proceeding is not instituted under the provisions relating to search warrants, and that no search warrant has been issued to any officer commanding him to hold the property which is claimed."

This objection was overruled. Testimony was then introduced on the part of the state and the matter submitted to the court for decision. On March 10, 1923, the court made findings of fact and conclusions of law, finding No. 4 being as follows:

"That the following articles, to wit, one back bar, one bar, one double cash register, two tobacco cases, one cigar showcase, one pool table, one card table, one card booth, six chairs and one stove, also one bar, one back bar, one cash register and one safe, claimed by one H. D. Hefferlin, and which were seized by the said enforcement officer as described in his return, constituting bars, furniture, fixtures, and appurtenances thereunto belonging, as described in section 11106 of the Revised Codes of Montana, are of contraband character and were used by the said Mickel J. Johnson in violation of the prohibition laws and were kept and possessed by him with the intention of using them in violation of the state prohibition laws, and of which fact the said H. D. Hefferlin had knowledge, or in the exercise of ordinary diligence should have known.”

foregoing findings and conclusions, declaring all of the property forfeited and ordering that the same be sold according to law, from which judgment the claimant H. D. Hefferlin has appealed.

Counsel for claimant has assigned numerous specifications of error in his brief, but in the view which we take of the case it will only be necessary to consider one of them, viz.: That the court erred in overruling the claimant's objection to the introduction of any testimony at the hearing.

[1, 2] The seizure and attempted forfeiture of the property involved in this matter were undertaken by virtue of section 11106, Revised Codes 1921. This section deals with forfeitures, and the proceedings therein authorized are of a civil nature. State v. Kelly, 57 Mont. 123, 187 Pac. 637; State v. Nielsen, 57 Mont. 137, 187 Pac. 639. The statute directs that when a violation of any of the provisions of the laws relating to intoxicating liquors shall occur in the presence of a having power to serve criminal process, it sheriff, constable, marshal, or other officer shall be the duty of the officer, without a warrant, to arrest the offender and to seize the liquors, etc., so unlawfully used, and to "take such offender immediately before the court or judge having jurisdiction in the premises." Section 11106. This means the court or judge having jurisdiction "to hear and determine the particular case presented for consideration, as well as to make such orders and to render such judgment therein as the law authorizes in the class of cases to which it belongs." State ex rel. Whiteside v. District Court, 24 Mont. 539 (553), 63 Pac. 395. Section 11122, Revised Codes 1921, expressly declares that the district court alone has jurisdiction to adjudicate a forefeiture of property seized under the provisions of section 11106, supra.

Having arrested the offender, seized the property, and taken the offender before the district court or judge thereof, the officer is next required to "make complaint under oath charging the offense so committed" and "to make return setting forth a particular description of the liquor and property seized and the place where the same was so seized."

[3] The statute does not specify what the complaint shall contain. Bearing in mind, however, that the entire proceeding is of a civil nature; that it is an original proceeding instituted in the district court; that a criminal action cannot be instituted in the district court by the filing of a complaint

tution prescribes, "All criminal actions in the district court, except those on appeal, shall be prosecuted by information, or indictment, by

which

STATE v. MELCHERT et al. (No. 5355.)

an indictment can be found only by a grand jury (section 11833, Id.)—it is apparent that the complaint mentioned in section 11106, su- | pra, is not a complaint such as is contemplated by the statute for the institution of a criminal proceeding before a justice of the peace, and that the requirements of the statute are not satisfied by taking the offender before such an officer and filing a complaint in the justice's court charging the commission of the offense, as was done in this case.

The complaint required by section 11106, supra, is one alleging an offense against the laws relating to intoxicating liquors committed in the presence of the officer in connection with the property seized, made under oath, to afford information to the court or judge having jurisdiction in the premises, so as to authorize it or him to set the machinery of the court in operation and to justify the next step in the forfeiture proceeding, namely, to "issue a warrant commanding, and di- | recting the officer to hold in his possession the property so seized, until discharged by process of law," thereby bringing the property seized within the jurisdiction of the district court so as to permit a hearing or adjudication concerning the same "in like manner as if the seizure had been made under a warrant therefor," as provided in sections 11104 and 11105, Revised Codes 1921. The complaint thus made performs a function in proceedings under section 11106 analogous to that of the sworn complaint mentioned in section 11104 as the basis for the issuance of a search warrant. Such complaint likewise brings the alleged violation of the law to the attention of the district judge, who is a magistrate under section 11619, Id., so that he can direct a prosecution to be instituted against the offender as provided in section 11731, Id.

In the absence of the complaint under oath the court or judge does not acquire jurisdiction of the subject-matter of the proceeding, and any warrant issued or proceeding thereafter had upon the officer's return is unauthorized. Since the record in this case shows that no such complaint under oath was made or filed by the officer making the arrest and taking the property claimed by Hefferlin into his possession, the court was without jurisdiction, and the judgment of forfeiture entered therein was and is void.

The judgment is reversed and the cause remanded to the district court of Park county with directions to enter a judgment in favor of the appellant. Reversed.

Appeal from District Court, Park County; Robert C. Stong, Judge.

Forfeiture proceedings by the State of Montana against Frank Melchert and another and certain property used in the liquor business, claimed in part by Frank Bliss. From a judgment of forfeiture, claimant appeals. Reversed and remanded, with direction.

Gibson & Smith, of Livingston, for appellant. W. D. Rankin, Atty. Gen., and L. V. Ketter, Asst. Atty. Gen., for the State.

STARK, J. In this case a judgment was entered on March 17, 1923, wherein it was adjudged and decreed that certain personal propdeclared forfeited and ordered sold. erty claimed by appellant, Frank Bliss, was

With the exception of the names of the parties, and a description of the property seized, the facts in this case are identical with those involved in case No. 5354, State v. Johnson et al., 220 Pac. 82, this day decided. The decision in that case is controlling in this one, and no useful purpose would be served by a repetition of what was therein said.

1

On the authority of State v. Johnson et al., supra, the judgment in this case is reversed and the cause remanded to the district court of Park county with directions to enter judgment in favor of the appellant, Frank Bliss. Reversed.

CALLAWAY, C. J., and COOPER, HOLLOWAY, and GALEN, JJ., concur.

HIMMELBAUER v. UNION BANK & TRUST CO. et al. (No. 5227.)

(Supreme Court of Montana. June 25, 1923, On Rehearing, Oct. 19, 1923.)

I. Attachment 186-Conduct of attaching officers held to warrant severe condemnation.

The unexplained conduct of attaching officers in keeping several custodians in charge of plaintiff's home for 18 days after her return thereto, where their presence in the kitchen and elsewhere was apparently wholly uncalled for, and in using unreasonable time to inventory and remove the property, warranted severe condemnation.

2. Attachment 161-Levy on goods in dwelling house after peaceable entry held authorized.

sion.

ror.

Error cannot be predicated on refusal of instruction stating the issue as defined in the pleadings, though the practice of so instructing is commendable.

On Rehearing.

4. Attachment 380-Forcible entry and detainer 35 Instruction that defendants had right to enter held warranted by evidence.

In an action against attaching creditor and sheriff for conversion of personalty and for forcible and wrongful entry of plaintiff's home and occupancy after entry, an instruction that defendants had the right to enter the premises and to seize the property under the writ of attachment held not erroneous on uncontradicted evidence that sheriff procured key from constable in apparent possession and made entry peaceably and without force. 5. Appeal and error 1066-Unwarranted reference to plaintiff's husband in instruction harmless.

In a suit for damages against sheriff and attachment creditor, error in mention of plaintiff's husband in instruction, where such reference was not warranted by evidence, held harmless.

6. Forcible entry and detainer 35-Instruction requiring too great degree of proof for actual damages held reversible error.

In an action for damages for forcible entry and continuous occupancy of her home, an instruction that to find for plaintiff personal property for the conversion of which damages were claimed in another cause of action must have been exempt, demand must have been made for its return, and the officers' conduct must have been wanton and malicious, was reversible error, since the jury need not find any of these facts to award actual damages.

Appeal from District Court, Lewis and Clark County; W. H. Poorman, Judge.

Action by Mabel Himmelbauer against the Union Bank & Trust Company and another. Judgment for defendants, and plaintiff appeals. Reversed on rehearing and remanded,

with direction.

See, also, 216 Pac. 791.

his wife, Mabel Himmelbauer, plaintiff and appellant herein, remaining and living at No. 622 Harrison avenue, Helena, Mont., with her mother until early in March of the same year, when plaintiff and her mother, Mrs. Cloutier, left for Portland, Or. For a long time prior to the departure of the plaintiff and her husband, they had lived and made their home at this same residence in Helena. Upon April 1, 1918, the defendant Union Bank & Trust Company caused a writ of attachment to issue out of the district court of the First judicial district for Lewis and Clark county, in an action wherein this plaintiff and her husband were defendants and the Union Bank & Trust Company was plaintiff, and on that day the sheriff of Lewis and Clark county, at the instance of the plaintiff bank, entered the house at 622 Harrison avenue in Helena, and levied upon and took possession of certain household furnishings and personal property situated therein, made an inventory thereof, and placed a custodian in charge. All of this was done during the absence of this plaintiff and her husband.

The evidence shows that on April 1st the sheriff, accompanied by Joseph Chivers, representing the bank, on their way to make the levy met Charles Hageman, a constable, on Harrison avenue, who accompanied them to the house. Hageman produced a key, unlocked the door, and thus was the entrance made. The record does not disclose any previous arrangement between the sheriff and Hageman for their meeting and entrance, nor is it explained in the record what key Hageman used to effect the entrance nor by what means he obtained the key. He got the key from his pocket. Hageman told the sheriff he had attached that property the day before. Plaintiff and her mother returned subsequently and found a keeper in charge of the property. Various keepers and custodians were placed in possession, all of whom retained its possession at the place where attached until April 19, 1918, when Mrs. Cloutier, the mother of plaintiff, was by agreement of all parties made custodian; she remaining as such until the property was

SPENCER, District Judge, sitting in place of GALEN, J., disqualified. Plaintiff commenced this suit against defendants, alleging in her complaint two causes of action, the first for a conversion of certain personal property and seeking recovery of its reasonable value, the second claiming damages for the wrongful, unlawful, and forcible entry of her home by the defendants and their wrongful and continuous occupancy after such entry. The record discloses the facts to be substantially as follows: In February, 1918, An