This court cannot discuss at length all the questions raised before it by assignment of errors or otherwise. In the present case a brief ruling is all that is necessary. Upon the record the court holds :
1st. The writ of replevin sued out in this case by the plaintiff was his suit, and to a very considerable extent under his control. The primary object was the possession of the property in dispute. It was the duty of the plaintiff to know, before he compelled the defendant to plead, what had been done with the writ and the property. On his motion the defendant was ruled to plead, and did plead, to the merits. The case was continued to the next term of the court, and no question was raised by him as to the whereabouts of the writ or the status of the property, till the final act of the court in assessing the value of the property. These acts on the part of the plaintiff raised a strong presumption in the court below that the writ had been fully executed and the property replevied and in his possession. In this court such presumption under the circumstances is conclusive.
2d. That the affidavit of the plaintiff to the value .of the property, in suing out the writ is competent, but not conclusive evidence of' that valué in any trial of that issue as against the plaintiff.
3d. That the case having been continued, and remaining on the docket for disposition at the next term, the court had the right to correct any erroneous order previously made in the case, there having been no trial or verdict of a jury, or judgment upon such trial or verdict.
4th. The question of the right of the court to assess the value of the property or the damages, is the only one of which we have had any doubt. But the weight of the decisions in the states upon similar statutes is in the affirmative. The supreme court of Illinois, more than twenty years ago, decided that statutes conferring upon courts the right to fix the value of the property and assess the damages in replevin were not an invasion of the constitutional right of trial by jury. And the supreme court of Iowa, upon a statute very similar to ours, has held that, where upon plaintiffs motion, an action of replevin has been dismissed and is • again reinstated on defendant’s motion, for the assessment of the damages, the plaintiff is treated as a party in default, and cannot demand a jury. ' •
In this case, we think there was no error in the court’s fixing the value of the property or assessing the damages, for in the record those expressions are used interchangeably. It is also to be considered that a reversal in this case could not benefit the plaintiff. The judgment against him is only $200, the value of the property fixed by himself in his affidavit, and on a new trial he would be estopped from proving any less sum.
We also call the attention of the attorneys to the fact that the bill of exceptions herein is materially defective, as is so often the case, and that we might affirm the judgment on that account alone.
The judgment of the district court is affirmed.