Heiser v. Severy

1. Appeal and Error ? on appeal from demurrer Supreme Court could not go beyond facts alleged in complaint. On appeal from trial courts ruling on demurrer, the only facts that stand admitted are those properly pleaded in the complaint and the Supreme Court could not go beyond the allegation of the complaint for the facts of the case. 2. States ? a state cannot be sued without its consent. A state cannot be sued in its own courts without its consent or be compelled against its will to discharge any obligation and this immunity extends to state boards, commissions and agencies. - Page 106 3. Replevin ? action of claim and delivery is founded upon tortious detention and judgment is in the alternative. The statutory action of claim and delivery is founded upon a tortious detention of property and judgment is in the alternative and provides for the return of the chattel or, in the event it is not returned, for its value and also for damages for its tortious detention. 4. Animals ? State has ownership of wild animals. The ownership of wild animals is in the state, and the state holds such ownership in its sovereign capacity for the use and benefit of the people generally. 5. States ? the state fish and game fund is property of the state and cannot be used to pay for torts of officers or employees. The state fish and game fund, composed of moneys from sale of hunting and fishing licenses, from sale of seized game or hides, and fines and damages collected for violations of fish and game laws and from appropriation by the legislature, is property of the state and moneys therein may not lawfully be used to pay for torts committed by officers or employees of the state fish and game commission for which such officers or employees are personally liable as individual wrongdoers. 6. States ? State not liable for tortious acts of its agents committed in the performance of their duties. Since a state is not generally liable for damages resulting from tortious acts of its agents committed in the performance of their duties, this claim and delivery action being an ex delicto action against the fish and game commissioners, game warden and deputy game warden in their official capacities, to recover a confiscated shotgun, or its value, could not be maintained where the state had not consented to be sued.