Kilpatrick-Koch Dry Goods Co. v. Rosenberger

77 N.W. 770, 57 Neb. 370, 1899 Neb. LEXIS 10

• Court: Nebraska Supreme Court
• Decided: January 5, 1899
• Docket: No. 8619
• Status: Published

Opinion

Ryan, C.

This action of replevin was brought by Rosenberger & Co. before W. A. Foster, a justice of the peace of Douglas county. Afterwards, by intervention, Kilpatrick-Koch Dry Goods Company sought to establish a right of possession to the personal property in dispute. The appraisers fixed the value of the property at $190.78, and accordingly a bond was executed as provided by law. Upon the trial of the case the justice of the peace found that the value of the property exceeded $200, and thereupon, Avithout doing more, certified the cause to the district court. In the district court exceptions Avere filed to its jurisdiction of the subject-matter, and these exceptions Avere sustained. It is conceded that the question involved is Avhether section 1038, Code of Civil Procedure, describes the appraisement by which the jurisdiction of a justice of the peace in cases of this kind is to be determined. That section is as follows: “For the purpose of fixing the amount of the undertaking, the Amine of the property shall be ascertained by the oath of tAvo responsible persons, whom the officer shall SAvear truly to assess the value thereof.” In Hill v. Wilkinson, 25 Neb. 103, it was held that-the appraisement under the provisions of this section is the appraisement by Avhich the jurisdiction of the justice of the peace is to be determined, and the same Aderv Avas announced in Bates v. Stanley, 51 Neb. 252. Under the provisions of section 1039, Code of Civil. Procedure, therefore, the district court properly held that the case was not one which should have been certified up, as this was, and its judgment is accordingly

Affirmed.