Fisk v. Wallace

The opinion of the court was delivered by Royce, J. This case comes here on exception to the pro-forma ruling of the court dismissing the appeal. A motion to dismiss could only be predicated upon what appears of record. Hence the ruling of the court in sustaining the motion can only be justified upon the ground that it appears from the record that the County Court had no appellate jurisdiction. The action of replevin in this State, to try the right to property, is a statutory action, and under the statute upon which this writ was brought, [420] the right to the property replevied is to be determined, as well as the damage which the replevying party has sustained on account of its unlawful taking and detention. If the ad damnum in the writ is more than $20, that, under the general provision of the law relating to the right of appeal, makes the suit appealable. Here the ad damnum was $20. That indicates the amount of damage that the plaintiff claims for the taking and detention. The matter of demand was' the property described in the writ and the damages claimed by the ad damnum for its taking and detention. These two things constituted the subject-matters of the litigation. The return of the officer, which is a part of the record, shows that the value of the property the title to which was a matter of demand, and to be settled in that writ, was $6. That sum, with the amount claimed as damages for its taking and detention, exceeded the sum of $20, and made the writ appealable. Judgment reversed, and cause remanded.