I can watch "The Wizard of Oz" umpteen times.
I saw it again recently and this time I focused on a scene of great legal significance.
That mean old Myra Gulch comes to auntie Emm and uncle Henry's house and she declares that she has come to take their vicious dog Toto to the sheriff to have him destroyed. Dorothy is besides herself and she says to uncle Henry,
"You won't let her destroy Toto will you uncle Henry."
Uncle Henry replies confidently, "Of course we won't."
Then Myra suddenly whips out a "sheriff's order" authorizing her to confiscate Toto forthwith.
An argument ensues when predictably Dorothy refuses to hand over the prisoner. Myra admonishes the family that they had better hand over Toto forthwith, "Unless you want to go against the law."
Uncle Henry scans the order for about two seconds and after a puff of his pipe he nods stoically and says, "I'm afraid she's right."
Vociferous protests by Dorothy who calls Myra Gulch an ugly old witch don't get her to change her mind about the extinction of Toto. Uncle Henry reluctantly hands Toto to Myra who carts him away in a basket.
After this sequence I did some thinking. Orders made without notice scare me, almost as much as barking dogs.It occurred to me that surely there must have been some provision to set aside this order of the sheriff. A special motion perhaps.
OZZIE J.: This is a motion by Dorothy Gale to set aside the ex parte order obtained by the respondent Myra Gulch from Twister County sheriff Charlie Farley.
The order was obtained pursuant to the provisions of the Dogs That Annoy Fine Folks Act.
Miss Gulch alleges that Dorothy's dog Toto frequently used to enter her garden and harass her. When she recently politely asked Dorothy to remove Toto, the dog lunged at her biting Miss Gulch in the shin. The learned sheriff, after hearing the evidence ordered the accused removed from the Gale residence and brought before him an order to be destroyed by means of a lethal injection.
Dorothy alleges in an affidavit that Toto is a fine dog really. She denies that Toto ever entered the garden and pleads that the complainant startled both her and Toto as they passed by suddenly jumping in front of them with her broom and cackling.
An affidavit sworn by Emma Gale, (Auntie Emm) alleges that Myra Gulch feels that she owns the entire county and that that for twenty three years she has wanted to tell Myra Gulch a few things, but being a Christian woman she couldn't say them.
After reviewing all the evidence I find that Toto did indeed take a nibble of Myra Gulch's shin. Not only did the complainant suffer physical pain but she was also forced to endure emotional trauma after the bite when Dorothy started singing.
The question now however is whether or not this order should have been sought with notice to Dorothy. And to Toto too.
Section 4 of the Act provides as follows:
4. The sheriff may issue the order without notice if:
a) The dog or owner cannot be readily located;
b) There is a likelihood that upon receiving such notice the dog or owner might abscond from the jurisdiction;
c) There is a likelihood that upon receiving such notice the dog or owner might bite the sheriff.
There is no doubt that the original application fails to meet the first leg, so to speak, of the test. Both Dorothy and Toto could readily be found at the Gale residence talking to the farm animals.
There is some skimpy evidence with respect to subsection "b" applying. Myra Gulch insists that had they received notice, both Toto and Dorothy would have been out of here like a tornado. She claims that Dorothy was always singing to herself a weird song about being off to see the wizard.
Gulch argues that there was furthermore good reason to believe that provision "c" was a likely contingency.
I disagree. The evidence of uncle Henry is that the Sheriff often came over to the Gale farm to pitch horseshoes with uncle Henry. When they were done Toto then used to engage Charlie in a vigourous game of checkers over a plate of Auntie Emm's chocolate fudge. I cannot see how Toto would have bitten the Sheriff had he attended to serve him papers. Perhaps he would have licked his hand. But that's it.
I find that the order of the sheriff should not have issued without notice and I set it aside. I award costs to Dorothy; and to Toto too.
I practice family and personal injury law. Please visit my website www.striglaw.com . My office is conveniently located in Thronhill, not Oz.