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Missouri Court of Appeals, Southern District

State ex rel. Zobel v. Burrell
Missouri
2005 WL 957908 (Mo. App. S.D. 2005)

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Summary:   A trial court granted a local humane society permission to humanely dispose of horses placed in their custody by the Sheriff.  The horses were seized pursuant to a search warrant.  A man filed petition for a writ of mandamus against the the trial judge and humane society to challenge the judge's order.  The Court of Appeals reversed the trial court holding the trial court lacked jurisdiction over the Humane Society of Missouri. Opinion transferred to State ex rel. Zobel v. Burrell, 167 S.W.3d 688 (Mo., 2005).

Opinion of the Court:

William A. Zobel has filed a Petition for Writ of Mandamus against the Honorable Don E. Burrell, the Humane Society of Missouri, Inc., and the Carthage Humane Society, Inc.

In the interest of justice as permitted by Rule 84.24(j), [FN1] the Court dispenses with issuance of a preliminary order, answer, further briefing and oral argument and issues a peremptory writ in mandamus.

FN1. All rule references are to Missouri Court Rules (2005).

We find that we have no jurisdiction in this matter over the Humane Society of Missouri, Inc., or the Carthage Humane Society, Inc., and thus we deny the petition for Writ of Mandamus against both of those parties.

At issue is whether section 578.018 [FN2] authorizes the Respondent Judge Don E. Burrell to grant permission to the Humane Society of Missouri and the Carthage Humane Society to humanely dispose of the horses and their offspring, which were placed in their care by the Greene County Sheriff after their impoundment under Search Warrant 05SW001. We find that it does not. Although said Respondent Judge Don E. Burrell had the authority to impound the animals and place the custody of the horses in the care of a veterinarian, the appropriate animal control authority, or animal shelter, he did not have the authority to allow either humane society to determine how to humanely dispose of the animals. We, therefore, order Respondent Judge Don E. Burrell to vacate paragraph six of his order of April 12, 2005, in IN RE search warrant issued 1/8/05, No. 05SW001.

FN2. All statutory references are to RSMo 2000 unless otherwise indicated.

In so finding, we note that section 578.016 specifically provides that an abandoned animal may be put up for adoption or humanely killed. Section 578.018 contained similar language until 1993, when this section was amended by the General Assembly. The earlier version of section 578.018.2, [FN3] provided that,

[a]ny person incurring reasonable costs for the care and maintenance of such animal shall have a lien against such animal until the reasonable costs have been paid, and may put up for adoption or humanely kill such animal if such costs are not paid within ten days after demand. Any moneys received for an animal adopted pursuant to this subsection in excess of costs shall be paid to the owner of such animal.

FN3. RSMo Supp 1983.

The amendments to section 578.018 in 1993 significantly restricted the permissible dispositions available to the court because the authority to dispose of an animal by adoption was removed from the statute, and disposition by humane killing was limited to those circumstances in which the animal "is diseased or disabled beyond recovery for any useful purpose."

The special lien right provided by section 578.018 was also eliminated when this statute was amended in 1993, but the General Assembly made no change to the general lien rights granted to a humane society that keeps or boards an impounded animal. See sections 430.150-430.165. The parties' suggestions indicate that both of the humane societies have availed themselves of this civil remedy by initiating actions in Jasper County and St. Louis County to foreclose their liens on the horses. Since those actions are not pending before Respondent Judge Don E. Burrell, there is no issue before this Court concerning any such liens, and this order is not intended to affect any such claims. We do note, however, that section 430.210 authorizes a lien claimant to obtain possession of an animal and hold it "subject to such judgment as he shall recover" in the lien foreclosure action.

Respondent Judge Don E. Burrell is ordered to strike paragraph 6 in his order of April 12, 2005, IN RE search warrant issued 1/8/05, No. 05SW001.

 

 

 

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