(dissenting). This action was commenced before a justice of the peace of Barnes county to recover two horses claimed under a chattel mortgage lien. The defendant claims a prior lien for the keeping of the horses at the request of the mortgagor and the owner of the property. If he had not kept and cared for the horses, they might have perished. Hence, he claims a lien for the care of them.
On January 20, 1915, it seems judgment was given for plaintiff, and defendant duly appealed; but the justice went out of office, left the state, made no return to the appeal, and we have no proof that he left a successor or a docket. There is nothing to show that he ever made any docket entries or kept a docket, and the chances are that he did not. There is on file a paper in the form of a judgment in favor of the plaintiff dated January 20, 1915, signed: “A. J. Beckley, Justice of the Peace.”
In the trial court there was made an order that the justice or his-successor in office make a return to the appeal, but no return was made. The justice was not in the state. The ease was on the court calendar three terms, and adjourned from time to time by consent of the parties, and on the fourth term it seems the judge gave notice to the attorneys that it must be tried and disposed of, and he termed it a “pestiferous” case. So, it was called for trial on motion of defendant, evidence was submitted and judgment entered in favor of the defendant for $62 and costs. The trial was in absence of the plaintiff and his counsel. The plaintiff appeals without making any motion to vacate the default or to amend or correct any error in the judgment. He assigns error in the failure of the court to dismiss the appeal, in the making and disregarding an order on the justice to return the record, and on calling the case for trial and taking the judgment by default.
The proceedings were grossly irregular, and it seems the attorneys showed a disposition to .play horse with the case. It had been on the court calendar for three terms, and at the fourth term it seems that the judge was determined to dispose of it, and so he gave notice -that they must be prepared to try the case. Clearly the court had jurisdiction of the case and a right to rescind or disregard his own orders.
The plaintiff appeals and assigns error in the failure of the court to dismiss the appeal, the making and then disregarding an order for .a return of the record, and the entry of judgment. There was no motion *432io open the judgment or to correct it in any manner; no attempt to •excuse the default and no affidavit of merits; no showing that the plaintiff had a cause of action.
Certain it is the court had jurisdiction of the action and a right to rescind and disregard its own orders, and to insist that action be tried ■or dismissed. That was all a matter of pure discretion with the trial -court. It seems the judment is irregular; it is against the defendant personally when it should deal with the horses only, unless the plaintiffs had possession of the horses; but the specifications of error do not point to such irregularity, and the chances are that neither the court nor the counsel ever thought of it. The judgment may be for too much, but the case is not here for trial or a review on the merits. There is nothing in the record which appeals to the favor of this court. The appeal should be dismissed and plaintiff left to his proper remedy, if any, by motion on a proper showing of merits and an excuse for his default.