ssleighter
Completely Boxer Crazy
I say we all write to the DelRio City Manager, Mayor and Police department on Mia's behalf!! I have the email addresses....
update on Chavez and Mia
- Thread starter 0728avila
- Start date
- Status
S
Slugger6969
Guest
I'm sorry...
I asked a friend who works for Lexis-Nexis to do a quick search regarding dogs, livestock and Texas law. Your best bet, after reading this, is to smuggle Mia out of there. But where is she now? Read that she was shot too.
I tried to clean up the code but may have missed some so just disregard.
The case sounds positive but in this instance, the dog was not witnessed attacking the goats and yours was seen knocking one down.
Tex. Health & Safety Code § 822.033 (2002)
§ 822.033. Dogs That Attack Domestic Animals
(a) A dog that is attacking, is about to attack, or has recently attacked
sheep, goats, calves, or other domestic animals or fowls may be killed by
any person witnessing or having knowledge of the attack.
(b) A person who kills a dog as provided by this section is not liable for
damages to the owner of the dog.
(c) A dog known or suspected of having killed sheep, goats, calves, or other
domestic animals or fowls is a public nuisance. Any person may detain or
impound the dog until the dog's owner is notified and all damage done by the
dog has been determined and paid to the proper persons.
(d) The owner of a dog that is known to have attacked sheep, goats, calves,
or other domestic animals or fowls shall kill the dog. A sheriff, deputy
sheriff, constable, police officer, magistrate, or county commissioner may
enter the premises of the owner of the dog and kill the dog if the owner
fails to do so.
LexisNexis (TM) Notes:
<<...OLE_Obj...>> CASE NOTES
<<...OLE_Obj...>> TREATISES AND ANALYTICAL MATERIALS
<<...OLE_Obj...>> CASE NOTES
<<...OLE_Obj...>> Governments : Agriculture & Food : Animal Protection
1. Individual who shot and killed two dogs that were chasing a doe and her
fawn was not exempt from liability for the death of the dogs under Tex.
Health & Safety Code Ann. § 822.033, because deer were not specifically
enumerated among the animals protected by the statute and were not domestic
animals that were habituated to live in or about the habitations of men or
that contributed to the support of a family. Bueckner v. Hamel, 886 S.W.2d
368, 1994 Tex. App. LEXIS 2168 (Tex. App. Houston 1st Dist. 1994).
<<...OLE_Obj...>> TREATISES AND ANALYTICAL MATERIALS
1. 3 Tex Jur ANIMALS § 153
Texas Jurisprudence,
3rd Edition, Animals, § 153 Killing or injuring dog to protect other
animals, Copyright 2002 West Group
Animals
X. Liability for Injuries to Animals
3 Tex Jur ANIMALS § 153
§ 153 Killing or injuring dog to protect other animals
A dog that is attacking, is about to attack, or has recently attacked sheep,
goats, calves, or other domestic animals or fowl may be killed by any person
witnessing or having knowledge of the attack, .lnfootnotes
{text-decoration:none; font-weight:bold; color:#0000FF; font-size:7pt} 79
and the person who so kills a dog is exempt from liability for damages to
the dog's owner.80 However, in that deer are neither specifically enumerated
by the statute as protected animals nor classified as domestic animals for
purposes of applying the statute, a hunter, who killed two dogs that were
chasing a doe and her fawn and that were not on property owned by any of the
parties, was not exempt from liability for the death of the dogs.81 The
attack on a protected animal must be in progress, imminent, or recent, and
an attack on cattle within the month before the shooting does not fit within
the absolution provided by the statute.82
A dog known or suspected of having killed sheep, goats, calves, or other
domestic animals or fowl is a public nuisance and may be detained or
impounded until the owner is notified and all damage done by the dog
determined and paid.83 The owner of such a dog must kill it and, if the
owner fails to do so, the sheriff or other listed officer may enter the
owner's premises and kill the dog.84
FOOTNOTES:
<<...OLE_Obj...>> n79 Tex. Health & Safety Code Ann. § 822.033(a)
<<...OLE_Obj...>> n80 Tex. Health & Safety Code Ann. § 822.033(b)
<<...OLE_Obj...>> n81 Bueckner v Hamel (1994, Tex App Houston (1st Dist))
886 SW2d 368,
> writ den (Jan 12, 1995) (defining domestic
animals as animals habituated to live in or about habitations of men, or
that contribute to the support of a family).
<<...OLE_Obj...>> n82 Bueckner v Hamel (1994, Tex App Houston (1st Dist))
886 SW2d 368,
writ den (Jan 12, 1995).
<<...OLE_Obj...>> n83 Tex. Health & Safety Code Ann. § 822.033(c)
<<...OLE_Obj...>> n84 Tex. Health & Safety Code Ann. § 822.033(d)
Measure, elements, and amount of damages for killing or injuring cat, 8
A.L.R. 4th 1287.
> Validity of statute or ordinance providing
for destruction of dogs, 56 A.L.R. 2d 1024.
Civil liability of landowner for killing or injuring trespassing dog, 15
A.L.R. 2d 578.
Answer asserting affirmative defense that animal was killed following
slaughter of defendant's livestock [PC § 42.09(e)]. 1 Texas Jur Pleading and
Practice Forms (2d ed.), Animals § 24:54.
Answer -- Defense -- Dog killed in self-defense. 1C Am. Jur. Pleading and
Practice Forms, Animals § 281.
I asked a friend who works for Lexis-Nexis to do a quick search regarding dogs, livestock and Texas law. Your best bet, after reading this, is to smuggle Mia out of there. But where is she now? Read that she was shot too.
I tried to clean up the code but may have missed some so just disregard.
The case sounds positive but in this instance, the dog was not witnessed attacking the goats and yours was seen knocking one down.
Tex. Health & Safety Code § 822.033 (2002)
§ 822.033. Dogs That Attack Domestic Animals
(a) A dog that is attacking, is about to attack, or has recently attacked
sheep, goats, calves, or other domestic animals or fowls may be killed by
any person witnessing or having knowledge of the attack.
(b) A person who kills a dog as provided by this section is not liable for
damages to the owner of the dog.
(c) A dog known or suspected of having killed sheep, goats, calves, or other
domestic animals or fowls is a public nuisance. Any person may detain or
impound the dog until the dog's owner is notified and all damage done by the
dog has been determined and paid to the proper persons.
(d) The owner of a dog that is known to have attacked sheep, goats, calves,
or other domestic animals or fowls shall kill the dog. A sheriff, deputy
sheriff, constable, police officer, magistrate, or county commissioner may
enter the premises of the owner of the dog and kill the dog if the owner
fails to do so.
LexisNexis (TM) Notes:
<<...OLE_Obj...>> CASE NOTES
<<...OLE_Obj...>> TREATISES AND ANALYTICAL MATERIALS
<<...OLE_Obj...>> CASE NOTES
<<...OLE_Obj...>> Governments : Agriculture & Food : Animal Protection
1. Individual who shot and killed two dogs that were chasing a doe and her
fawn was not exempt from liability for the death of the dogs under Tex.
Health & Safety Code Ann. § 822.033, because deer were not specifically
enumerated among the animals protected by the statute and were not domestic
animals that were habituated to live in or about the habitations of men or
that contributed to the support of a family. Bueckner v. Hamel, 886 S.W.2d
368, 1994 Tex. App. LEXIS 2168 (Tex. App. Houston 1st Dist. 1994).
<<...OLE_Obj...>> TREATISES AND ANALYTICAL MATERIALS
1. 3 Tex Jur ANIMALS § 153
Texas Jurisprudence,
3rd Edition, Animals, § 153 Killing or injuring dog to protect other
animals, Copyright 2002 West Group
Animals
X. Liability for Injuries to Animals
3 Tex Jur ANIMALS § 153
§ 153 Killing or injuring dog to protect other animals
A dog that is attacking, is about to attack, or has recently attacked sheep,
goats, calves, or other domestic animals or fowl may be killed by any person
witnessing or having knowledge of the attack, .lnfootnotes
{text-decoration:none; font-weight:bold; color:#0000FF; font-size:7pt} 79
and the person who so kills a dog is exempt from liability for damages to
the dog's owner.80 However, in that deer are neither specifically enumerated
by the statute as protected animals nor classified as domestic animals for
purposes of applying the statute, a hunter, who killed two dogs that were
chasing a doe and her fawn and that were not on property owned by any of the
parties, was not exempt from liability for the death of the dogs.81 The
attack on a protected animal must be in progress, imminent, or recent, and
an attack on cattle within the month before the shooting does not fit within
the absolution provided by the statute.82
A dog known or suspected of having killed sheep, goats, calves, or other
domestic animals or fowl is a public nuisance and may be detained or
impounded until the owner is notified and all damage done by the dog
determined and paid.83 The owner of such a dog must kill it and, if the
owner fails to do so, the sheriff or other listed officer may enter the
owner's premises and kill the dog.84
FOOTNOTES:
<<...OLE_Obj...>> n79 Tex. Health & Safety Code Ann. § 822.033(a)
<<...OLE_Obj...>> n80 Tex. Health & Safety Code Ann. § 822.033(b)
<<...OLE_Obj...>> n81 Bueckner v Hamel (1994, Tex App Houston (1st Dist))
886 SW2d 368,
> writ den (Jan 12, 1995) (defining domestic
animals as animals habituated to live in or about habitations of men, or
that contribute to the support of a family).
<<...OLE_Obj...>> n82 Bueckner v Hamel (1994, Tex App Houston (1st Dist))
886 SW2d 368,
writ den (Jan 12, 1995).
<<...OLE_Obj...>> n83 Tex. Health & Safety Code Ann. § 822.033(c)
<<...OLE_Obj...>> n84 Tex. Health & Safety Code Ann. § 822.033(d)
Measure, elements, and amount of damages for killing or injuring cat, 8
A.L.R. 4th 1287.
> Validity of statute or ordinance providing
for destruction of dogs, 56 A.L.R. 2d 1024.
Civil liability of landowner for killing or injuring trespassing dog, 15
A.L.R. 2d 578.
Answer asserting affirmative defense that animal was killed following
slaughter of defendant's livestock [PC § 42.09(e)]. 1 Texas Jur Pleading and
Practice Forms (2d ed.), Animals § 24:54.
Answer -- Defense -- Dog killed in self-defense. 1C Am. Jur. Pleading and
Practice Forms, Animals § 281.
S
Slugger6969
Guest
Continued from above
This is the case law...
178 S.W. 696, *; 1915 Tex. App. LEXIS 818, **
WEBB v. WESSELL et al.
No. 1493.
COURT OF CIVIL APPEALS OF TEXAS, TEXARKANA
178 S.W. 696; 1915 Tex. App. LEXIS 818
June 23, 1915, Decided
SUBSEQUENT HISTORY: [**1] Rehearing Denied July 3, 1915.
PRIOR HISTORY: Appeal from District Court, Marion County; H. F. O'Neal,
Judge.
Action by A. J. Wessell against N. B. Webb and another. From a judgment for
plaintiff, defendant Webb appeals.
DISPOSITION: Affirmed.
CORE TERMS: dog, goats, killing, killed, kill, herd, gun, domestic animals,
duty, judgment rendered, legal right, servant, animal, credibility,
prosecuted, inclosure, attacked, barn, farm, shot
HEADNOTES: Appeal and Error -- Trial to Court -- Weight of Evidence.
In an action tried by the court, he is the exclusive judge of the
credibility of the witnesses and of the weight to be given their testimony.
Animals -- Action for Killing Dog -- Evidence.
In an action for damages for killing a dog alleged to have attacked
defendant's goats, evidence held to justify a judgment for plaintiff.
Master and Servant -- Master's Liability for Act of Servant.
In an action for damages for killing plaintiff's dog, defendant was liable,
although the killing was done by his servant in the course of defendant's
employment.
Appeal and Error -- Review -- Sufficiency of Pleadings.
On appeal, the pleadings of both parties may be considered in determining
their sufficiency to support the judgment rendered.
COUNSEL: J. H. Benefield, of Jefferson, for appellant.
Schluter & Singleton, of Jefferson, for appellee.
JUDGES: HODGES, J.
OPINIONBY: HODGES
OPINION: [*696] HODGES, J. The appellee sued the appellant, N. B. Webb, and
W. F. Palmer, in the justice court, for damages for killing his dog. He
recovered a judgment for $ 90. An appeal was prosecuted by Webb and Palmer
to the district court, where a judgment was rendered against them in favor
of the appellee for $ 100. The case was tried before the court without a
jury.
The evidence shows that the dog for which the recovery was sought was a
valuable, well-trained pointer dog, and was killed under the following
circumstances: Webb was the owner or manager of a farm situated near the
city of Jefferson, on which he kept a herd of goats. He had employed Palmer
to work upon the farm and to watch over the goats and see that they were not
molested by dogs. On Sunday, May 17, 1914, Palmer shot and killed the
appellee's dog while it [**2] was inside the inclosure containing the goats.
There was testimony tending to show that, at the time the shooting occurred,
the dog was not molesting or attempting to molest the goats. Palmer admitted
the killing, but sought to justify it upon the ground that the dog was
killed in defense of the goats. He testified, in substance, that prior to
the day the dog was killed three of the goats had been missed, and he
suspected that they had been killed by dogs, but did not know. On the
afternoon of the day of the killing the dog in controversy, in company with
another dog, had attacked one of the goats, and they were discovered in the
act of devouring it. Palmer drove them off. He then went to Webb's barn and
procured a gun, and on his return, finding this dog still in the inclosure
not a great way from the herd of goats, shot and killed him. While gone to
the barn after the gun, Palmer left his wife to stand guard over the goats
and prevent further depredations by the dogs. He insists that he did the
killing purely in defense of the flock of goats, and that this was
necessary. According to Palmer's testimony, when he went after the gun he
reported the situation to Webb and was instructed [**3] by the latter, if
the dogs were found on the goats, to kill them. Palmer further testified
that he tried to drive the dogs from the pasture; that they refused to leave
the premises, and ran off down in the field. According to the evidence, the
dog had a money value equal to the amount of the recovery. No question is
made in this appeal as to the judgment being excessive.
Webb alone has prosecuted an appeal. He urges two grounds for reversing the
judgment: (1) That, under the facts, Palmer had a legal right to kill the
dog; and (2) that the act of Palmer in killing the dog, if unlawful, was one
for which Palmer alone was responsible.
The evidence relied on by the appellee tended to show a wanton and
unjustifiable killing of the dog. That relied on for justification was
furnished by the testimony of Palmer and his wife and the appellant Webb.
All of these witnesses were deeply interested in the result of the suit; two
of them were parties defendant; and the court had a right, if he felt
justified in so doing, to reject their testimony as untrue. In trials of
this character, where the court has to judge of the facts as well as the
law, he occupies the status of a jury and is the exclusive [**4] judge of
the credibility of the witnesses and of the weight to be given their
testimony. There are no findings of fact in the record, and the judgment is
a general one. We are not, therefore, advised as to the particular grounds
upon which the court based his conclusions. We must indulge every
presumption inferable from the record in favor of the [*697] correctness of
his judgment. We cannot say, as a matter of law, that he did not refuse to
credit the testimony concerning the defense presented. But, even had he
accepted this testimony as true, we are not disposed to hold that he
committed an error for which his judgment should be reversed. The evidence
indicated that the dog was a valuable animal; that it had been rendered for
taxation as property. There was no evidence that it was vicious or addicted
to predatory habits. A dog of this character may be treated as property
owned and held upon the same plane of legal protection as other domestic
animals which are classed as property. The right of a party to kill a dog of
this character is governed by the same rules which justify the killing of
other domestic animals. It may be conceded that Palmer had the legal right
to kill this [**5] particular dog if the killing reasonably appeared to be
necessary to the protection of the herd of goats committed to his care. But
the court might have concluded from Palmer's own statements that the killing
of the dog was not necessary to that end; that ordinary prudence for the
protection of the goats, and a proper regard for the rights of the owner of
the dog, as well as humanitarian impulses, demanded a different course of
procedure. State v. Smith, 156 N.C. 628, 72 S.E. 321, 36 L. R. A. (N. S.)
910;
The second ground is no less untenable than the first. Webb had employed
Palmer to protect his goats. That was a part of the duty which Palmer had
undertaken to perform. It is therefore immaterial whether Palmer obeyed or
disobeyed Webb's instructions as to the details of his method of performing
that duty. It is sufficient, if it be shown, that the act of Palmer in
killing the dog was done in furtherance of the employer's service. T. & N.
O. Ry. Co. v. Parsons, 109 S.W. 240;
Id., 102 Tex. 157, 113 S.W. 914, 132 Am. St. Rep. 857.
It is true that, under the pleadings of the plaintiff alone, the
allegations are hardly sufficiently broad to invoke the doctrine of
respondeat [**6] superior; but those pleadings, taken together with the
facts set up in the answer, contained all of the averments necessary.
The pleadings of both parties may be considered in determining their
sufficiency to support the judgment rendered.
The judgment of the district court is affirmed.
This is the case law...
178 S.W. 696, *; 1915 Tex. App. LEXIS 818, **
WEBB v. WESSELL et al.
No. 1493.
COURT OF CIVIL APPEALS OF TEXAS, TEXARKANA
178 S.W. 696; 1915 Tex. App. LEXIS 818
June 23, 1915, Decided
SUBSEQUENT HISTORY: [**1] Rehearing Denied July 3, 1915.
PRIOR HISTORY: Appeal from District Court, Marion County; H. F. O'Neal,
Judge.
Action by A. J. Wessell against N. B. Webb and another. From a judgment for
plaintiff, defendant Webb appeals.
DISPOSITION: Affirmed.
CORE TERMS: dog, goats, killing, killed, kill, herd, gun, domestic animals,
duty, judgment rendered, legal right, servant, animal, credibility,
prosecuted, inclosure, attacked, barn, farm, shot
HEADNOTES: Appeal and Error -- Trial to Court -- Weight of Evidence.
In an action tried by the court, he is the exclusive judge of the
credibility of the witnesses and of the weight to be given their testimony.
Animals -- Action for Killing Dog -- Evidence.
In an action for damages for killing a dog alleged to have attacked
defendant's goats, evidence held to justify a judgment for plaintiff.
Master and Servant -- Master's Liability for Act of Servant.
In an action for damages for killing plaintiff's dog, defendant was liable,
although the killing was done by his servant in the course of defendant's
employment.
Appeal and Error -- Review -- Sufficiency of Pleadings.
On appeal, the pleadings of both parties may be considered in determining
their sufficiency to support the judgment rendered.
COUNSEL: J. H. Benefield, of Jefferson, for appellant.
Schluter & Singleton, of Jefferson, for appellee.
JUDGES: HODGES, J.
OPINIONBY: HODGES
OPINION: [*696] HODGES, J. The appellee sued the appellant, N. B. Webb, and
W. F. Palmer, in the justice court, for damages for killing his dog. He
recovered a judgment for $ 90. An appeal was prosecuted by Webb and Palmer
to the district court, where a judgment was rendered against them in favor
of the appellee for $ 100. The case was tried before the court without a
jury.
The evidence shows that the dog for which the recovery was sought was a
valuable, well-trained pointer dog, and was killed under the following
circumstances: Webb was the owner or manager of a farm situated near the
city of Jefferson, on which he kept a herd of goats. He had employed Palmer
to work upon the farm and to watch over the goats and see that they were not
molested by dogs. On Sunday, May 17, 1914, Palmer shot and killed the
appellee's dog while it [**2] was inside the inclosure containing the goats.
There was testimony tending to show that, at the time the shooting occurred,
the dog was not molesting or attempting to molest the goats. Palmer admitted
the killing, but sought to justify it upon the ground that the dog was
killed in defense of the goats. He testified, in substance, that prior to
the day the dog was killed three of the goats had been missed, and he
suspected that they had been killed by dogs, but did not know. On the
afternoon of the day of the killing the dog in controversy, in company with
another dog, had attacked one of the goats, and they were discovered in the
act of devouring it. Palmer drove them off. He then went to Webb's barn and
procured a gun, and on his return, finding this dog still in the inclosure
not a great way from the herd of goats, shot and killed him. While gone to
the barn after the gun, Palmer left his wife to stand guard over the goats
and prevent further depredations by the dogs. He insists that he did the
killing purely in defense of the flock of goats, and that this was
necessary. According to Palmer's testimony, when he went after the gun he
reported the situation to Webb and was instructed [**3] by the latter, if
the dogs were found on the goats, to kill them. Palmer further testified
that he tried to drive the dogs from the pasture; that they refused to leave
the premises, and ran off down in the field. According to the evidence, the
dog had a money value equal to the amount of the recovery. No question is
made in this appeal as to the judgment being excessive.
Webb alone has prosecuted an appeal. He urges two grounds for reversing the
judgment: (1) That, under the facts, Palmer had a legal right to kill the
dog; and (2) that the act of Palmer in killing the dog, if unlawful, was one
for which Palmer alone was responsible.
The evidence relied on by the appellee tended to show a wanton and
unjustifiable killing of the dog. That relied on for justification was
furnished by the testimony of Palmer and his wife and the appellant Webb.
All of these witnesses were deeply interested in the result of the suit; two
of them were parties defendant; and the court had a right, if he felt
justified in so doing, to reject their testimony as untrue. In trials of
this character, where the court has to judge of the facts as well as the
law, he occupies the status of a jury and is the exclusive [**4] judge of
the credibility of the witnesses and of the weight to be given their
testimony. There are no findings of fact in the record, and the judgment is
a general one. We are not, therefore, advised as to the particular grounds
upon which the court based his conclusions. We must indulge every
presumption inferable from the record in favor of the [*697] correctness of
his judgment. We cannot say, as a matter of law, that he did not refuse to
credit the testimony concerning the defense presented. But, even had he
accepted this testimony as true, we are not disposed to hold that he
committed an error for which his judgment should be reversed. The evidence
indicated that the dog was a valuable animal; that it had been rendered for
taxation as property. There was no evidence that it was vicious or addicted
to predatory habits. A dog of this character may be treated as property
owned and held upon the same plane of legal protection as other domestic
animals which are classed as property. The right of a party to kill a dog of
this character is governed by the same rules which justify the killing of
other domestic animals. It may be conceded that Palmer had the legal right
to kill this [**5] particular dog if the killing reasonably appeared to be
necessary to the protection of the herd of goats committed to his care. But
the court might have concluded from Palmer's own statements that the killing
of the dog was not necessary to that end; that ordinary prudence for the
protection of the goats, and a proper regard for the rights of the owner of
the dog, as well as humanitarian impulses, demanded a different course of
procedure. State v. Smith, 156 N.C. 628, 72 S.E. 321, 36 L. R. A. (N. S.)
910;
The second ground is no less untenable than the first. Webb had employed
Palmer to protect his goats. That was a part of the duty which Palmer had
undertaken to perform. It is therefore immaterial whether Palmer obeyed or
disobeyed Webb's instructions as to the details of his method of performing
that duty. It is sufficient, if it be shown, that the act of Palmer in
killing the dog was done in furtherance of the employer's service. T. & N.
O. Ry. Co. v. Parsons, 109 S.W. 240;
Id., 102 Tex. 157, 113 S.W. 914, 132 Am. St. Rep. 857.
It is true that, under the pleadings of the plaintiff alone, the
allegations are hardly sufficiently broad to invoke the doctrine of
respondeat [**6] superior; but those pleadings, taken together with the
facts set up in the answer, contained all of the averments necessary.
The pleadings of both parties may be considered in determining their
sufficiency to support the judgment rendered.
The judgment of the district court is affirmed.
ssleighter
Completely Boxer Crazy
I'll help you smuggle her.... ;-)
I also did a search on Westlaw and didn't come up with anything near what Slugger did, but I came to same conclusion.
Good luck with this. It's a very hard lesson to learn and I can only imagine what you are going thru emotionally!
Sharon
I also did a search on Westlaw and didn't come up with anything near what Slugger did, but I came to same conclusion.
Good luck with this. It's a very hard lesson to learn and I can only imagine what you are going thru emotionally!
Sharon
Last edited:
DixieDiana
Boxer Buddy
I am so sorry to hear the latest news. There has to be some altenative though....there just has to be!
I would talk to every available source as to some alternative to putting Mia down. Even if it means that Mia has to leave the state of Texas and live with a new family....that's a lot better than putting her down!!
Please keep us updated!
AND PRAY!!
I would talk to every available source as to some alternative to putting Mia down. Even if it means that Mia has to leave the state of Texas and live with a new family....that's a lot better than putting her down!!
Please keep us updated!
AND PRAY!!
Rowdy's Dad
Guest
Once Mia is not in that County, they would have a hard time coordinating a search for her. Dallas is 7 hours away, but maybe there is somewhere closer that you could "stash" her for a while.
I agree. We need to come together as a community and give our support, show that there were other alternatives they could have exercised, and let them know that we are APPALLED. I can't believe that in this day and time they still deal with this in such an inhumane manner. Are they still living in the 18th Century or what?
We need to email them AND bombard their switchboard with phone calls to drive the message home. Imagine their reactions when they realize we are calling from all over the U.S.
Kimber & Mac
Super Boxer
Anothher case...wrong state, but it may help
EVELYN CULLINANE vs. BOARD OF SELECTMEN OF MAYNARD.
No. 99-P-53
APPEALS COURT OF MASSACHUSETTS
50 Mass. App. Ct. 851; 742 N.E.2d 83; 2001 Mass. App. LEXIS 54
November 6, 2000, Argued
February 9, 2001, Decided
PRIOR HISTORY: [***1] Middlesex. Petition filed in the Concord Division of the District Court Department on February 6, 1997. The case was heard by Barbara S. Pearson, J. Civil action commenced in the Superior Court Department on September 5, 1997. The case was heard by Stephen E. Neel, J., on motions for summary judgment.
DISPOSITION: The judgment of the Superior Court is vacated. A new judgment shall enter remanding the case to the District Court for further proceedings consistent with this opinion.
CASE SUMMARY
PROCEDURAL POSTURE: Two dogs belonging to petitioner were adjudged a nuisance by reason of vicious disposition by respondent, the Board of Selectmen of Maynard, Massachusetts, and ordered destroyed. Petitioner appealed to the clerk-magistrate, and then to the district court, and finally to the Superior Court Department, Middlesex (Massachusetts), which all affirmed respondent's decision. Petitioner then appealed to the present appellate court.
OVERVIEW: Petitioner's dogs periodically escaped from petitioner's yard, despite petitioner's escalating efforts to contain them, and killed or injured various animals in the surrounding area. The dogs were put in the custody of the town's dog officer and adjudged a nuisance by reason of vicious disposition by respondent, the Board of Selectmen of Maynard, Massachusetts, and ordered destroyed. A series of courts affirmed respondent's decision. The appellate court, however, vacated the judgment of the prior court, and remanded the case to the district court because justice required that the parties be able to introduce additional evidence appropriate to the purpose. The dogs had never shown a vicious disposition to humans, and petitioner had installed a new kennel that others described as "fail safe" and a "fortress." In addition, the older dog died of cancer while in custody, and the older dog was thought to be the more dominant and aggressive dog.
OUTCOME: Judgment vacated and case remanded to the district court for further proceedings because petitioner had installed a new and very secure kennel, the dog had never shown aggression toward humans, and the deceased dog was dominant and more aggressive.
EVELYN CULLINANE vs. BOARD OF SELECTMEN OF MAYNARD.
No. 99-P-53
APPEALS COURT OF MASSACHUSETTS
50 Mass. App. Ct. 851; 742 N.E.2d 83; 2001 Mass. App. LEXIS 54
November 6, 2000, Argued
February 9, 2001, Decided
PRIOR HISTORY: [***1] Middlesex. Petition filed in the Concord Division of the District Court Department on February 6, 1997. The case was heard by Barbara S. Pearson, J. Civil action commenced in the Superior Court Department on September 5, 1997. The case was heard by Stephen E. Neel, J., on motions for summary judgment.
DISPOSITION: The judgment of the Superior Court is vacated. A new judgment shall enter remanding the case to the District Court for further proceedings consistent with this opinion.
CASE SUMMARY
PROCEDURAL POSTURE: Two dogs belonging to petitioner were adjudged a nuisance by reason of vicious disposition by respondent, the Board of Selectmen of Maynard, Massachusetts, and ordered destroyed. Petitioner appealed to the clerk-magistrate, and then to the district court, and finally to the Superior Court Department, Middlesex (Massachusetts), which all affirmed respondent's decision. Petitioner then appealed to the present appellate court.
OVERVIEW: Petitioner's dogs periodically escaped from petitioner's yard, despite petitioner's escalating efforts to contain them, and killed or injured various animals in the surrounding area. The dogs were put in the custody of the town's dog officer and adjudged a nuisance by reason of vicious disposition by respondent, the Board of Selectmen of Maynard, Massachusetts, and ordered destroyed. A series of courts affirmed respondent's decision. The appellate court, however, vacated the judgment of the prior court, and remanded the case to the district court because justice required that the parties be able to introduce additional evidence appropriate to the purpose. The dogs had never shown a vicious disposition to humans, and petitioner had installed a new kennel that others described as "fail safe" and a "fortress." In addition, the older dog died of cancer while in custody, and the older dog was thought to be the more dominant and aggressive dog.
OUTCOME: Judgment vacated and case remanded to the district court for further proceedings because petitioner had installed a new and very secure kennel, the dog had never shown aggression toward humans, and the deceased dog was dominant and more aggressive.
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