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| Marcel Strigberger |
One of my favourite films is The Wizard of Oz.
I saw it again recently and this time I noticed a scene of great legal significance.
That mean Almira Gulch comes to Auntie Em and Uncle Henry’s house to take Dorothy’s dog Toto to the sheriff to have him destroyed. Apparently, Toto bit Gulch on the leg resulting in her going to the sheriff and getting an order to put him to sleep (Toto, not the sheriff).
Dorothy frantically exclaims, “You won’t let her destroy Toto will you Uncle Henry.”
Uncle Henry replies confidently, “Of course we won’t.”
Then Gulch suddenly whips out the “sheriff’s order” authorizing her to confiscate Toto forthwith.
An argument ensues as Dorothy refuses to hand over the prisoner. Gulch 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.”
Uncle Henry reluctantly hands Toto to Almira who carts him away in her bicycle basket.
After this sequence I did some thinking. Orders made without notice to the affected party scare me; almost as much as barking dogs.
It occurred to me that surely there must have been some procedural provision in Kansas to set aside this order of the sheriff. If so might there be a special motion looking like this perhaps?
“OZZIE J.: This is a motion by Dorothy Gale to set aside the order obtained without notice, by the respondent Almira 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 recently entered her garden and lunged at her biting Miss Gulch in the shin.
The learned sheriff, after hearing the evidence of Miss Gulch ordered the accused removed from the Gale residence and brought before him in order to be put down.
Dorothy alleges 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, (a.k.a. Auntie Em) alleges that Gulch feels that she owns the entire county and that for 23 years she has wanted to tell Almira Gulch a few things, but being a Christian woman she couldn’t say them.
I find that Toto did indeed take a nibble of Almira Gulch’s shin. Not only did the complainant suffer physical pain but she also experienced emotional trauma afterwards 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 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. Almira 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 him. When they were done Toto then used to engage Charlie in a vigorous 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.
I find that the order of the sheriff should not have issued without notice and I set it aside. I award legal costs of the motion to Dorothy; and to Toto too.”
I guess the movie producers never focused on the legal aspects of this scene. As lawyers, no doubt the legal significance of this order without fair notice to Dorothy et al. did not escape us. At least justice was done as Toto jumped out of the basket en route to his expected demise. I trust next time any of us watch the movie again, we’ll view this scene with different lenses and appreciate the equitable outcome.
Marcel Strigberger retired from his Greater Toronto Area litigation practice and continues the more serious business of humorous author and speaker. His book Boomers, Zoomers, and Other Oomers: A Boomer-biased Irreverent Perspective on Aging is now available in paper and e-book versions where books are sold. Visit www.marcelshumour.com. Follow him @MarcelsHumour.
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