Meister v. Russell

Giletllan, C. J. This is an action in replevin, commenced before a justice of the peace, and, after judgment for plaintiff, removed to the district court by appeal on questions of law alone. The defendant answered before the justice without making the [56] objection made here, to wit, that the writ was not served by the proper officer; so it was waived. The complaint alleged the value of the property at $90. This was put in issue, and the justice found it to be $92, and, the property not having been delivered to plaintiff, entered judgment in his favor for the return of the property, and, in case a return could not be had, for its value, $92, and for the costs, stated in gross at $14.65. On a hearing before the district court it ordered judgment reversing the judgment of the justice because of the excess of the $2 above the value stated in the complaint, but on a motion by plaintiff for a rehearing or new trial it modified the judgment by striking out the $2, leaving it to stand for the $90. The appellant objects that the district court had no authority to-reconsider and modify its first decision. The authority is fully given by 1878 G-. S. ch. 66, § 125. He objects, also, that the justice’s failure to state the fees due to each person separately, as required by 1878 G-. S. ch. 65, § 7, subd. 8, rendered the judgment erroneous. The entry of the fees separately is not required to be in the judgment, and is no part of it, but is to be a separate entry in the docket, like many other such entries required to be made. The omission to make any one of them does not make the judgment erroneous, though probably a party to the action may insist upon the justice making the omitted entry. As an appeal on questions of law under our system of procedure is for the correction of error, we have no doubt that upon an appeal from a justice on questions of law the court may, if the erroneous part of the judgment be severable from the remainder, reverse as to the erroneous part, leaving the remainder to stand; in other words, may modify the judgment so that it shall be correct. Judgment affirmed. Vanderburgh, J., took no part in this decision. (Opinion published 54 N. W. Rep. 935.)