after stating the facts in the foregoing terms, delivered the opinion of the court.
2. An action at common law to recover the possession of personal property was treated as local, and could only be maintained in the county where the property was unlawfully taken -. Cobbey, Repl. § 564; Kirk v. Matlock, 12 Or. 319 ( 7 Pac. 322). The statute prescribing the place of trial in actions of this character is as follows: “Actions for the following causes shall be commenced and tried in the county in which the subject of the action, or some part thereof, is situated: * * (2) For *80the recovery of personal property distrained for any cause. ’ ’ Hill’s Ann. Laws, § 42. While the word “distrain” originally meant the taking of the property of another as security for the performance of some obligation (3 Bl. Comm. 231) the term “distrained,” as used in the section of the statute quoted, undoubtedly signifies the holding of the personal property of another for any purpose whatever.
3. The right to maintain an action in the nature of replevin in a given forum does not depend upon the place where the property is taken, but rests solely upon the county in which it is unlawfully held at the time the action is instituted. Such action is therefore local, and can only be prosecuted in the county where the property is distrained; and, its situs being necessary to jurisdiction of the subject-matter, the advisability of alleging in the complaint the county in which the property is distrained is apparent. This the plaintiff failed to do, and the demurrer interposed in the justice’s court challenged the sufficiency of the complaint in this respect, which being overruled, the defendant answered over; and, if the rules applicable to the trial of actions in the circuit court are to prevail in the justice’s court, the averment in the complaint that the property was unlawfully taken in Polk County was cured by the judgment, from which it would be. implied that such property at the time the action was instituted was detained in that county. Thus in Moorhouse v. Donaca, 14 Or. 430 (13 Pac. 112), it was held that a complaint in an action for the recovery of personal property which alleges only a wrongful taking within the county in which the action is brought, is bad on demurrer, but in the absence of such objection the pleading is sufficient to support evidence of the situs of the property when the action was begun. Mr. Justice Thayer, in speaking of the failure of the complaint to show where the property was kept when the action was commenced, says: “If a defendant in such an action desires to raise a question of that character, he should do so by demurrer; and, if that is overruled, he may stand upon it, and not answer over, otherwise he will waive the point.” It follows *81that, if the action was triable in the circuit court upon the issue of fact made in the justice’s court, an error was committed in sustaining the demurrer.
4. The act of February 17, 1899 (Laws, 1899, p. 109), provides, in effect, that the rules of procedure in a court of record shall govern in determining the forms and sufficiency of pleadings in a justice’s court: Section 12. It also provides, in'section 47, that, when the appeal from the justice’s court is perfected, the circuit court shall have jurisdiction thereof, and must proceed to hear, determine, and try the same anew, disregarding any irregularity or imperfection in matters of form which may have occurred in the justice’s court. Section 48 provides that the circuit court on appeal may allow the pleadings in the action to be amended so as not substantially to change the issues tried in the justice’s court, or to introduce any new cause of action or defense. Considering these clauses in pari materia, does the power vested in the circuit court on appeal, to try the cause anew, authorize it to determine the sufficiency of each pleading sent up, as if it had been originally filed in such court? If the complaint filed in the justice’s court had failed to state facts sufficient to constitute a cause of action, the right of the circuit court on appeal to sustain a demurrer to such pleading based upon that ground is unquestioned, though such objection had not been made in the lower court. Hill’s Ann. Laws, § 71; Bowen v. Emmerson, 3 Or. 452; Evarts v. Steger, 5 Or. 147; Ball v. Doud, 26 Or. 14 (37 Pac. 70); Hargett v. Beardsley, 33 Or. 301 (54 Pac. 203). The complaint having alleged that the defendant, in Polk County, wrongfully took the horse and harness from the plaintiff’s possession, the failure to aver that the property was in the county at the time the action was commenced was not an entire want of a material averment, but a defective statement of the facts respecting the venue of the action, but sufficient to base a presumption thereon that, the property having been taken in said county, it was also held therein: Moorhouse v. Donaca, 14 Or. 430 (13 Pac. 112). The rules for determining the sufficiency of a pleading in a justice’s court being the same as in a court of record, it follows that while the justice’s court, *82in overruling tbe demurrer to the complaint, committed an error, such error was waived by the defendant’s answering over: Olds v. Cary, 13 Or. 362 (10 Pac. 786); Drake v. Sworts, 24 Or. 198 (33 Pac. 563). So, too, when a demurrer is overruled, and the party pleads over, the demurrer is abandoned, and ceases to be a part of the record: Wells v. Applegate, 12 Or. 208 (6 Pac. 770).
5. As we understand the transcript, the demurrer sustained by the circuit court was the one interposed in, and overruled by, the justice’s court; and the defendant having answered over, such demurrer ceased to be a part of the record. The trial anew in the circuit court on appeal, as we understand the term, means a new trial by the introduction of original evidence upon the issue as made in the justice’s court. The issue ultimately made in that court was an issue of fact, which was to be tried in the circuit court, on an appeal, not upon errors assigned, but as if such cause had never been tried. The demurrer in question interjected an issue of law which had been waived, and, this being so, the court erred in sustaining it, and for this reason the judgment is reversed, and a new trial ordered. Reversed.
