MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
In 1914 the Malin-Yates Company, a corporation, commenced an action in the justice of the peace court at Billings, against Frank C. Andrews, to recover $210 represented by certain promissory notes. A writ of attachment was issued and property belonging to defendant seized. Upon motion of defendant the court discharged the attachment, and this proceeding was thereupon instituted by the plaintiff to secure a review of the order. Upon consideration of the record duly certified to it, the district court annulled the order discharging the attachment, and from that judgment this appeal is prosecuted.
1. It is insisted that the affidavit for the writ of review fails [1] to state facts sufficient to show that the justice of the peace acted without or in excess of jurisdiction. The affidavit recites the history of the case in the justice’s court, and by reference contains copies of all the records before that court on the motion to discharge. We agree with counsel for appellant that in order to secure a writ of review, the affidavit must set forth the facts which show that the inferior court acted without or in excess of jurisdiction, and that the mere recital that he did so act is not sufficient. But if the affidavit, with the records incorporated in it, disclose the want of jurisdiction, it is sufficient, and the formal conclusion pleaded cannot detract from such sufficiency.
The affidavit in question discloses that the motion to discharge was determined upon the pleadings then before the court, the affidavit and undertaking on attachment, and the notes sued upon. These several notes are identical in form, five of them for $25 each, and one for $85. Each of the $25 notes contains this provision; “This note is given as the purchase price [138]*138for one Studebaker milk wagon, and it is hereby expressly agreed and understood that the title to said property shall be and remain in Malin-Yates Co. until payment of said purchase price is made in full.” The other note is the same, except that the property is described as “one 2%” Studebaker Moline wagon complete. Each note provides also that the payee may take possession of the property in case of the maker’s default. There is not any contention made that the complaint does not state facts sufficient to constitute a cause of action, or that the affidavit or undertaking is not sufficient in form. The affidavit contains the statement that the payment of the debt sued upon “is not secured by any mortgage or lien upon real or personal property or any pledge of personal property.” It is earnestly insisted, however, that upon the presentation of the notes in [2] court it was made to appear to the justice of the peace that the debt was secured; that the allegation in the affidavit to the contrary was untrue, and therefore the case was not such a one as would justify the issuance of the writ. The attachment we are considering is a provisional remedy available in civil actions upon contracts, express or implied, for the direct payment,of money, provided only that: “The contract is not secured by any mortgage or lien upon real or personal property, or any pledge of personal property.” (Rev. Codes, sec. 6656.) Any other kind or class of security is not inhibited (4 Cyc. 452), and therefore, to sustain the justice of the peace in discharging the attachment, it is not enough for appellant to show that the claim sued upon was secured, but he must sustain the burden of showing that it was secured by a mortgage or lien upon real or personal property or a pledge of personal property.
The transaction evidenced by these notes is frequently designated a conditional sale. The appellation is a misnomer, but [3] the error has become so firmly fixed in our legal nomenclature that its use is now sanctioned by the courts and exercised by the text-writers. In reality the transaction amounts only to an executory agreement of sale accompanied by the delivery of possession to the intending purchaser, to be held by [139]*139him pending payment of the purchase price, the title remaining in the prospective vendor until that precedent condition has been met. (1 Meehem on Sales, sec. 563; Rev. Codes, sec. 5082.) That the agreement does not evidence a- sale of any character is demonstrated by a reference to our statutory definition of that term contained in section 5079, Revised Codes. The relationship of the parties to the subject matter of such a contract is the determining factor, and the question thus presented ought to be deemed solved by the numerous decisions of this court construing similar agreements. It is settled beyond dispute in this state that under such a contract as is evidenced by these notes, the prospective purchaser does not acquire any title to the property, but that the intending vendor retains title until payment has been made, and that he may maintain claim and delivery to recover the property upon condition broken, even as against an innocent third party. (Heinbockle v. Zugbaum, 5 Mont. 344, 51 Am. Rep. 59, 5 Pac. 897; Silver Bow M. & M. Co. v. Lowry, 6 Mont. 288, 12 Pac. 652; Miles v. Edsall, 7 Mont. 185, 14 Pac. 701; Goodkind v. Gilliam, 19 Mont. 385, 48 Pac. 548; Sanford v. Gates, Townsend & Co., 21 Mont. 277, 53 Pac. 749; Bennett Bros. Co. v. Fitchett, 24 Mont. 457, 62 Pac. 780; Madison R. Livestock Co. v. Osler, 39 Mont. 244, 133 Am. St. Rep. 558, 102 Pac. 325.) The recent recording statute protects the innocent third party, but does not affect the parties to the original transaction in their dealings inter sese. In the last case cited above, we held further that, notwithstanding the intending vendor retains title, he may maintain an action on the contract for the purchase price.
With these principles settled, the question presented upon this appeal is not difficult of solution. The Malin-Yates Company did not have a mortgage upon real or personal property or a pledge of personal property to secure its claim against Andrews (Rev. Codes, secs. 5731, 5774), and neither did the transaction constitute it a lienor (Bennett Bros. Co. v. Fitchett, above). So far, then, as this record discloses, its cause of action was one [140]*140of the character designated by section 6656 above, in which an attachment might properly issue.
2. It is urged that the writ of review cannot be made to serve the purpose of a writ of error, and in this we also agree with appellant. If the justice of the peace had jurisdiction to dis-[4] charge the writ of attachment, an error of judgment, or an error in the exercise of discretion, could not be corrected upon certiorari. But the jurisdiction thus comprehended comprises more than jurisdiction of the parties and subject matter; it includes as well the power or authority to make the particular order in controversy. (State v. District Court, 35 Mont. 321, 89 Pac. 63; In re Mettler, 50 Mont. 299, 146 Pac. 747.) Section 6683, Revised Codes, made applicable to the practice in justices’ courts, requires the attachment to be discharged if it appears that the writ was improperly or irregularly issued.
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
In 1914 the Malin-Yates Company, a corporation, commenced an action in the justice of the peace court at Billings, against Frank C. Andrews, to recover $210 represented by certain promissory notes. A writ of attachment was issued and property belonging to defendant seized. Upon motion of defendant the court discharged the attachment, and this proceeding was thereupon instituted by the plaintiff to secure a review of the order. Upon consideration of the record duly certified to it, the district court annulled the order discharging the attachment, and from that judgment this appeal is prosecuted.
1. It is insisted that the affidavit for the writ of review fails [1] to state facts sufficient to show that the justice of the peace acted without or in excess of jurisdiction. The affidavit recites the history of the case in the justice’s court, and by reference contains copies of all the records before that court on the motion to discharge. We agree with counsel for appellant that in order to secure a writ of review, the affidavit must set forth the facts which show that the inferior court acted without or in excess of jurisdiction, and that the mere recital that he did so act is not sufficient. But if the affidavit, with the records incorporated in it, disclose the want of jurisdiction, it is sufficient, and the formal conclusion pleaded cannot detract from such sufficiency.
The affidavit in question discloses that the motion to discharge was determined upon the pleadings then before the court, the affidavit and undertaking on attachment, and the notes sued upon. These several notes are identical in form, five of them for $25 each, and one for $85. Each of the $25 notes contains this provision; “This note is given as the purchase price [138]*138for one Studebaker milk wagon, and it is hereby expressly agreed and understood that the title to said property shall be and remain in Malin-Yates Co. until payment of said purchase price is made in full.” The other note is the same, except that the property is described as “one 2%” Studebaker Moline wagon complete. Each note provides also that the payee may take possession of the property in case of the maker’s default. There is not any contention made that the complaint does not state facts sufficient to constitute a cause of action, or that the affidavit or undertaking is not sufficient in form. The affidavit contains the statement that the payment of the debt sued upon “is not secured by any mortgage or lien upon real or personal property or any pledge of personal property.” It is earnestly insisted, however, that upon the presentation of the notes in [2] court it was made to appear to the justice of the peace that the debt was secured; that the allegation in the affidavit to the contrary was untrue, and therefore the case was not such a one as would justify the issuance of the writ. The attachment we are considering is a provisional remedy available in civil actions upon contracts, express or implied, for the direct payment,of money, provided only that: “The contract is not secured by any mortgage or lien upon real or personal property, or any pledge of personal property.” (Rev. Codes, sec. 6656.) Any other kind or class of security is not inhibited (4 Cyc. 452), and therefore, to sustain the justice of the peace in discharging the attachment, it is not enough for appellant to show that the claim sued upon was secured, but he must sustain the burden of showing that it was secured by a mortgage or lien upon real or personal property or a pledge of personal property.
The transaction evidenced by these notes is frequently designated a conditional sale. The appellation is a misnomer, but [3] the error has become so firmly fixed in our legal nomenclature that its use is now sanctioned by the courts and exercised by the text-writers. In reality the transaction amounts only to an executory agreement of sale accompanied by the delivery of possession to the intending purchaser, to be held by [139]*139him pending payment of the purchase price, the title remaining in the prospective vendor until that precedent condition has been met. (1 Meehem on Sales, sec. 563; Rev. Codes, sec. 5082.) That the agreement does not evidence a- sale of any character is demonstrated by a reference to our statutory definition of that term contained in section 5079, Revised Codes. The relationship of the parties to the subject matter of such a contract is the determining factor, and the question thus presented ought to be deemed solved by the numerous decisions of this court construing similar agreements. It is settled beyond dispute in this state that under such a contract as is evidenced by these notes, the prospective purchaser does not acquire any title to the property, but that the intending vendor retains title until payment has been made, and that he may maintain claim and delivery to recover the property upon condition broken, even as against an innocent third party. (Heinbockle v. Zugbaum, 5 Mont. 344, 51 Am. Rep. 59, 5 Pac. 897; Silver Bow M. & M. Co. v. Lowry, 6 Mont. 288, 12 Pac. 652; Miles v. Edsall, 7 Mont. 185, 14 Pac. 701; Goodkind v. Gilliam, 19 Mont. 385, 48 Pac. 548; Sanford v. Gates, Townsend & Co., 21 Mont. 277, 53 Pac. 749; Bennett Bros. Co. v. Fitchett, 24 Mont. 457, 62 Pac. 780; Madison R. Livestock Co. v. Osler, 39 Mont. 244, 133 Am. St. Rep. 558, 102 Pac. 325.) The recent recording statute protects the innocent third party, but does not affect the parties to the original transaction in their dealings inter sese. In the last case cited above, we held further that, notwithstanding the intending vendor retains title, he may maintain an action on the contract for the purchase price.
With these principles settled, the question presented upon this appeal is not difficult of solution. The Malin-Yates Company did not have a mortgage upon real or personal property or a pledge of personal property to secure its claim against Andrews (Rev. Codes, secs. 5731, 5774), and neither did the transaction constitute it a lienor (Bennett Bros. Co. v. Fitchett, above). So far, then, as this record discloses, its cause of action was one [140]*140of the character designated by section 6656 above, in which an attachment might properly issue.
2. It is urged that the writ of review cannot be made to serve the purpose of a writ of error, and in this we also agree with appellant. If the justice of the peace had jurisdiction to dis-[4] charge the writ of attachment, an error of judgment, or an error in the exercise of discretion, could not be corrected upon certiorari. But the jurisdiction thus comprehended comprises more than jurisdiction of the parties and subject matter; it includes as well the power or authority to make the particular order in controversy. (State v. District Court, 35 Mont. 321, 89 Pac. 63; In re Mettler, 50 Mont. 299, 146 Pac. 747.) Section 6683, Revised Codes, made applicable to the practice in justices’ courts, requires the attachment to be discharged if it appears that the writ was improperly or irregularly issued. This statute considers two classes of cases, one in which an attachment has been issued in an action which does not fall within the class of actions mentioned in section 6656, and the other, one in which the writ has been issued in a proper action, but in which the proceedings to secure it have been irregular. ¥e have determined that the action commenced in the justice of the peace court belongs to the class in which the writ may issue, and since there was not any attack made upon the regularity of the proceedings to obtain it, the justice’s court did not have before it anything to move it to order the writ discharged. It had no authority, and therefore no jurisdiction, to make the particular order discharging the attachment, and such order was subject to correction upon certiorari proceedings. (Rev. Codes, sec. 7209.)
The order discharging the attachment was made on April 17, 1914. The proceeding for the writ of review was not instituted until April 28, 1914, but there is nothing before us to indicate that any rights of third persons intervened. If they did not, complaint cannot be made of that feature of the judgment which directed the attachment to be reinstated and stand unimpaired. If the rights of third parties are prejudiced by [141]*141tbis judgment, they are not involved in tbis litigation, and cannot be considered until they are made to appear in an appropriate manner.
Tbe judgment is affirmed.
Affirmed.
Me. Chief Justice Brantlt and Mr. Justice Sanner concur.