On the 22d day of December, 1876, Brown, the plaintiff below and appellee' here, made the usual affidavit before the clerk of the probate court of Colfax county for a writ of replevin against Abren, the defendant below and appellant here, to recover the possession of two horses,'valued at $300, and damages.
The affidavit was on the same day filed in the qffice of the probate clerk, and a writ of replevin issued by him, under the seal of the probate court. „
The sheriff made return to such writ that, on the 22d day of December, 1876, he served the same, took from Brown a bond, and delivered to him the two horses.
This writ, among other things contains a citation to Abren to be and appear before the district court for the first judicial district, on'the first day of the (then) next term thereof, to be begun and held within and for the county of Taos, at the court house of said county, on the first Friday after the fourth Monday of March, 1877, to answer unto Webster Brown for the wrongful detention of the goods and chattels aforesaid to the damage of the plaintiff $300.’-'
The making and filing'the affidavit and bond, and issuing the writ under the circumstances, evidently were done in pursuance of the statute of the territory enacted in January, 1868: Vide Session Laws 1868, p, 76. This statute pro. vides that the clerks of the respective probate courts of the territory are authorized to issue writs of replevin subject to the same rules and restrictions as are prescribed for the clerks of the district courts, upon the filing in the office of any such clerk of a probate court an affidavit and bond by the plaintiff as therein specified. ' Such statute further provides that the defendant may protest against the replevin by filing such protest within thirty days after the replevying of the property, and “ alleging innocence in the premises against him,” and this allegation shall bring in question, not only the legal ownership of the property, but also the illegal ■seizure and detention thereof. But a failure to file such protest within the thirty days, “ shall be deemed an abandonment of all claim In the premises, and the said action shall be conclusive and the claimant shall not be bound for the prosecution of Iris suit in the district court.”
Such statute further provides that any clerk of a probate court, before whom any such action of replevin shall have originated, shall file in his office all the papers and documents relative to the case, and shall transmit the same to the clerk of the district court, ten days before the commencement of the next term thereof in his county; provided such protest shall have been filed within the time prescribed; but if such protest should not be. so filed, then the papers shall not be transmitted to the clerk of the district court, but remain in the office of the clerk of the probate court. The more this statute is considered by any one, the greater his perplexity is likely to be, as to how it can be legitimately applied to any judicial proceeding in the district court.
Upon filing with the probate clerk an affidavit and bond by the plaintiff, and the issuing and service of a writ of replevin, and before the plaintiff’s petition or declaration is required to be filed in the office of the clerk of the district court, the defendant is required to file his protest and allege his innocence.
Where he is to file the same is not specified in the statute, there is nothing to indicate that ho is to file the same with the clerk of the district court, and it is but an exceedingly remote inference that he is to file the same with the probate clerk; if so made and filed, then such protest and allegation of innocence shall bring in question the ownership of the property and the illegal seizure and detention thereof, that is, such proceeding shall raise the very issues to be tried in an action of replevin.
It would seem to be a fair construction of this statute that the plaintiff’s affidavit should be treated as his verified declaration in replevin, arid the defendant’s protest and allegation of innocence should be regarded as his plea in bar upon the merits, and that the issues to be tried are in this way to be made up in replevin suits thus instituted before probate clerks ; that, perhaps, would be well enough ; it would only be creating an additional mode of procedure. But the strange feature of this statute is, that a default in filing this protest, by the defendant, “ shall be decreed an abandonment of all claim in the premises,” etc.
Decreed by. what tribunal ? Certainly not by the district court, the only competent tribunal to make such a decree. Because, if the protest should not be filed, the casé is not to be transmitted to that court for adjudication. The plaintiff in that contingency, after acquiring possession of the property under the writ, retains the same without being required to appear and prosecute the action in the district court to> final judgment.
While we refrain from passing upon the validity of SO' much of this statute as relates to the determination of the right to personal property through the default of the defendant to file his protest, and allege his innocence as prescribed thereby, without an adjudication by a competent tribunal, yet we entertain very grave doubts of its validity or of its being due process of law.
The property in controversy was replevied on the 22d day of December, 1876. This is the date from which the thirty-days within which the defendant was required to file his protest under the statute would begin to run.
The defendant below was cited in and by the writ that was served on him at the instance of the plaintiff, to appear at the district court “ on the first Friday after the fourth Monday in March, 1877,” and plead to the plaintiff’s declaration. Such appearance would be long after the expiration of the “thirty days.”
On the 2d day of April, 1877, the plaintiff below filed his declaration in the office of the clerk of the district court, which was of course long after the exjfiration of the “ thirty days.” It was also during the term of the district court at which the writ was returnable. On the 6th day of April, 1877, and at the term aforesaid, the defendant below filed his plea to such declaration, pleading thereby the general issue, and at the same term on the ,10th day of April, 1877, the cause was continued to the (then) next ensuing term, at the cost of the plaintiff, and upon the agreement of both parties, and at the term next thereafter, both parties appearing, the court sustained a motion then and there made by the plaintiff, to strike the cause from the docket, on the ground that the defendant had failed to file such protest, and allege his innocence under such statute. Judgment was entered striking the cause from the docket, without further adjudication. The defendant excepted. Even upon the assumption that this statute in all respects is a valid law, there can be no doubt that the plaintiff could waive the default of the defendant in filing his protest and allegation of innocence, and that he could, notwithstanding such default, submit himself and his ease to the jiirisdietion of the district court in the ordinary mode, by personal appearance, and filing his declaration in replevin.
We are unanimous in our opinion that the plaintiff waived such default by his subsequent appearance, pleading and consenting to a continuance. That the court below acquired jurisdiction as well of both parties of the cause, by the service of the writ with the citation therein contained, the appearances of both parties, and submitting to such jurisdiction long after the expiration of the “ thirty days,” as well as by the filing of .their respective pleadings, and agreeing to a continuance. The court below having in this way acquired such jurisdiction, neither party was at liberty to withdraw without the consent of the other, so as to prevent a final judgment determining the right to the possession of the property as between them.
The judgment of the -court below in striking the cause from the docket under the circumstances, was erroneous. It is ordered.that judgment be entered, reversing the judgment below for appellant’s costs, and remanding the cause to the court below, with dii-ections to reinstate the same upon the docket, and to,proceed therein by due eoui'se of law.