51 Neb. 650 | Neb. | 1897
This is an action in replevin brought before a justice of the peace of Hall county by John W. Fines against' Tucker Bolin. Fines, in bis replevin affidavit, alleged that be was tbe owner and entitled to tbe immediate possession of certain chattel property, describing it; that Bolin wrongfully detained tbe possession of said property from him, Fines; that said property bad not been taken from him on any order or judgment, etc., following
The only assignment of error which we notice is the action of the court in overruling the motion to quash the replevin writ issued by the justice of the peace. Section 1033 of the Code of Civil Procedure provides: “A plaintiff may recover possession of specific personal property of less value than two hundred dollars before a justice of the peace as herein provided.” And section 1034 of said Code provides: “An action for this purpose shall not be brought until there is filed in the office of the justice an affidavit of the plaintiff, his agent or attorney, showing (1) a description of the property claimed; (2) that the plaintiff is the owner thereof, or has a special ownership therein, stating the facts in relation thereto, and that he is entitled to the immediate possession of the property; (3) that the property is wrongfully detained by the defendant; (4) that it was not taken in execution,” etc. It will thus be seen that the filing with the justice of the peace of an affidavit substantially complying with the requirements of the statute is a necessary prerequisite to invest the justice of the peace with jurisdiction to entertain an action in replevin, and to invest him with jurisdiction to issue a writ of replevin. (Bardwell v. Stubbert, 17 Neb., 485; Commercial State Bank v. Ketcham, 46 Neb., 568.) The statute does not expressly require the plaintiff in a replevin action brought before a justice of the peace to file a bill of particulars; and it was said in Hill v. Wilkinson, 25 Neb., 103, that section 951 of the Code of Civil
Reversed.