31 Minn. 429 | Minn. | 1884
Action in replevin, commenced before a justice of the peace. The writ, and the affidavit and bond on which it issued, were so irregular and defective that we may assume, had timely objection been made before the justice, he would have been required to dismiss the action. But the defendant made no objection and put in his answer, the parties proceeded to trial, and the justice rendered judgment for the plaintiff. Defendant appealed, on questions of law alone, to the district court, and that court reversed the judgment. The evidence justified the judgment of the justice, and we see no-error on the trial before him. The district court must have rendered its judgment on the authority of St. Martin v. Desnoyer, 1 Minn. 25, (41,) where it was held that, unless the property is actually taken on the writ, the justice has no jurisdiction, even by consent of parties, to try the action; and that, under the statute then in force, the action was one in rein. That statute (Laws 1849, c. 6, art. 10) seems to treat-the section as one in ram, and to contemplate a trial by the justice only in case of an actual caption of the goods. The court, in the case referred to, lays particular stress on the fact that the statute contains no provision for a trial unless the property is found and replevied. In the Revision of 1851 a provision was inserted, which has continued to this time, (Gen. St. 1878, c. 65, § 94,) to the effect that “if the property sought is not obtained, the plaintiff, if he establishes his
Judgment reversed.