The objection made to the judgment of the district court for Cuming county is not valid. That court is one of general jurisdiction. It had jurisdiction of the person of the defendant, and also of the subject matter of the action, as shown by the petition, and therefore the judgment which it pronounced is binding upon all the parties to it until regularly set aside. .
I. It is very likely that, had Daily chosen to do so, he could, by proper answer, have shown.a state of facts that would have made it improper and erroneous for the court to have proceeded further with the case. He was acting under a writ duly issued from the federal court, whose officer he was. His possession was in contemplation of law the possession of the court, and it was the undoubted right of that court to determine whether such possession were lawful or not. Amy v. The Supervisors, 11 Wall., 136. But this right he could waive, and he did waive it, by neglecting to plead the authority under which he had taken the goods as a defense to the action. While he might have shielded himself by proper answer as against the jurisdiction of the state court, this was not necessary to entitle him to the protection of the indemnifying bond by which he was induced to make the seizure. The state court was fully competent to decide all of the questions involved in the case, and its - judgment in the premises is quite as conclusive as a like judgment pronounced by the federal court would have been. Besides, the plaintiffs are not in a situation to complain.' Edgar, *472the principal in the bond, was duly notified by Daily that the goods had been replevied, and he agreed to employ counsel to take charge of the case. Any defense that Daily could have made was also available to him, and it was his fault alone that it was not interposed. Notice to the sureties of Edgar was unnecessary. His liability under the contract is the exact measure of theirs. It may be true even that some of the items of damage allowed against Daily ought to have been rejected, but if so, it is now too late to question the correctness of the allowance then made.
II. It is further objected that the judgment in the replevin suit is void. 1st. Because a copy of the order of delivery was not served upon Daily, and 2d. For the reason that a jury was not called to assess the damages. As to the first of these objections, we hold it to have been a mere irregularity or omission not at all essential to the jurisdiction of the court. The court acquired jurisdiction over the person of Daily by the service of its summons upon him; and over the property, by the sheriff taking it into his possession under the order of delivery. Daily was in court by virtue of the summons, and if it were desired to call in question the service of the order of delivery, the proper time was before trial and judgment, for afterwards it is too late to do so.
By the second of these objections 'it seems to be assumed that, under no circumstances in a replevin suit has the court the authority to assess the damages. And so the supreme court of Ohio seems to have held under a statute just like ours so far as it affects this question. Wolf v. Meyer, 12 Ohio State, 432. But this, unlike most of the decisions of that court, is not at all satisfactory, and we think fails to recognize the full scope of another provision of the statute relative to the trial of causes by the court. Section 296, of our code of civil pro*473cednre, corresponding with Section 279, of the Ohio code, provides that: “The trial by jury may be waived by the parties in actions arising on contract, and with the assent of the court, in other actions, in the following manner:
“First. By the consent of the party appearing, when the other party fails to appear at the trial by himself or attorney.
“Second. By written consent in person, or by attorney, filed with the clerk.
“Third. By oral consent in open court entered on the joufnal.”
An action to recover the possession of personal property does not arise on contract, and it therefore falls within the somewhat numerous class denominated in the foregoing section, “other actions,” in which the waiver of a jury depends upon the assent of the court. But such assent will be presumed from the fact that the court did assess the damages. The case against Daily came within first of the three sub-divisions of the section providing the manner of waiver when but one of the parties appears at the trial. In the case against Daily the plaintiff was the only party present at the trial, and he exercised the privilege of dispensing with the jury, and permitted the court to decide all the questions of fact necessary to a complete determination of the controversy. We think this practice was clearly within the statute, and fully justified, notwithstanding the decision in Wolf v. Meyers, above cited.
III. It is also assigned for error that the court below allowed to Daily as an item of damage, in addition to the amount found by the judgment in the replevin suit, the sum of $150, an expense incurred by him in taking care of the goods while they were under his control, but which he did not actually pay until the day of trial. *474We think this item was properly admitted under the petition. It was very clearly covered by the bond, one of the conditions being, that Edgar and his sureties, Baker and Hugus, should “ hold the said United States marshal, Daily, harmless, and afford him full indemnity against any damages, loss, or'expanse” incurred by seizing the property in question. And the petition distinctly charges this item of $150 as a part of the necessary expense to which Daily was put, “ by reason of taking possession of said property, pursuant to the request of the defendants, and under the protection of said bond.” The fact that it was not actually paid until ■after the commencement of the action on the bond is of no consequence; he had incurred the indebtedness, and that was a damage'against which the bond was designed to protect him. Noble v. Arnold, 23 Ohio State, 264.
We see no reason for disturbing the judgment, and it is affirmed.
Judgment affirmed.