People v. One 1950 Ford Sedan

[648]

NOURSE, P. J.

The appeal in this case, in which the entitled automobile was forfeited to the state because of its use for transportation of contraband alcoholic beverage seizable under Business and Professions Code, section 25350, is restricted to the part of the judgment adjudging that plaintiff recover its costs from the appellant, the legal owner of the automobile, who filed an answer (Bus. & Prof. Code, § 25362), but did not introduce any evidence so that there was no proof of due investigation (Bus. & Prof. Code, § 25367). Appeal is also taken from the order taxing said costs. Whether and in how far costs were recoverable from appellant are the only questions involved. (The registered owner, who used the car for the illegal transportation, defaulted.)

Appellant does not deny that the forfeiture proceedings are within the range of actions and special proceedings for which Code of Civil Procedure, section 1032 provides for awarding of costs, but contends that said forfeiture proceedings are an action

in rem,

in which the costs can be recovered from the automobile, the

res,

only, not

in personam

from the claimant. The contention that in a forfeiture procedure

in rem

the court had no jurisdiction to adjudge costs

in personam

was rejected by the United States Supreme Court in

Hipolite Egg Co.

v.

United States,

220 U.S. 45, 58 et seq. [30 S.Ct. 364, 55 L.Ed. 364]. It was there said (at p. 59) : “It may be . . . that ‘in a suit

in rem,

unless some one intervenes, the power and process of the court is confined to the thing itself and does not reach either the person or property of the owner. ’ If, however, the owner comes in, or an intervener does, his appearance is voluntary. He becomes an actor and subjects himself to costs. ...” In