on petition for rehearing.
Beard, Justice.This case was decided February 2, 1907, the opinion appearing in 88 Pac., 650. Plaintiff in error has filed a petition for rehearing in which it is now claimed that the *304transscript of the justice shows a pleading by the plaintiff, “because the transcript shows that the plaintiff in error caused a writ of replevin to issue from the justice court against the defendant.” And it is contended that “this writ was his plea or petition or complaint.” This is a departure from the position taken at the hearing; and we cannot agree with counsel that the writ is a pleading and can take the place of the pleadings required by the statute. The plaintiff must plead, and his first pleading, whether oral or in writing, consists of a statement of the facts constituting- his cause'of action; while the writ is the command of the court to the officer to whom it is directed. It is not the writ that the defendant is called upon to answer; but it is the cause of action as stated by the plaintiff in his pleading. As stated in the opinion, the transcript failed to show any pleading by the plaintiff, hence there was nothing upon which the defendant could raise an issue either of fact or law. The motion for a rule on the justice did not state, nor was there any evidence offered to show, that the transcript was erroneous or that the plaintiff in fact plead before the justice. We see no reason to change our opinion and a rehearing is denied. Rehearing denied.
Potter, C. J., and Scott, J., concur.