(dissenting). This is an appeal from the judgment of the county court of Cass county that the action be dismissed for the reason that the court has no jurisdiction of the subject of the action. The objection should have been made by a demurrer and then if sustained it would have saved the cost of a needless and useless trial. Counsel for defendant makes objection to the settlement of the statement of the case, but as there has been no judgment upon the merits, *15the statement of tbe. ease and tbe evidence become immaterial. If tbe court bad jurisdiction of tbe subject of tbe action, tbe case must be remanded for a trial on tbe merits.
Tbe action is based on an act for tbe cooperage of cars by which it is made tbe duty of tbe railway company to furaisb shippers of grain box cars properly lined and coopered for tbe grain and in ease of failure to do so then, after notice of four hours, tbe shipper may repair tbe car and recover tbe expense in a civil action against tbe railway company. Comp. Laws 1913, § 4701. This act was passed by reason of tbe fact that railway companies have been .quite in tbe habit of furnishing cars with small crevices, cracks, and leakages by which grain is lost to tbe owner’, who finds it difficult to prove tbe loss and to recover compensation by suit for damages. To prevent leakage it may be necessary to line tbe inside of tbe car in whole or in part with tar paper and often it is of special importance that tbe work be done quickly. There is no time to consult Interstate Commerce Commissions.
Tbe complaint shows that in 1915 and 1916 tbe plaintiff was a shipper of numerous carloads of grain over tbe road of tbe defendant from Walseth, North Dakota, to St. Paul, Minnesota; that defendant furnished tbe plaintiff box cars which were not properly lined and coopered so as to bold tbe grain; that after due notice was given defendant, it failed and refused to put tbe cars in a fit condition to receive tbe grain; that by reason thereof plaintiff was obliged to cooper tbe cars and to pay for tbe same.several sums, one hundred in all, amounting to $151.41. Then there is given the date, tbe number of each car, tbe labor and material expended in coopering tbe same.
Clearly tbe complaint does state, a cause of action, in accordance with tbe letter and spirit of tbe statute, but counsel for defendant insist that as tbe grain shipment was interstate commerce, that tbe necessary cooperage was also interstate commerce and that plaintiff has no remedy except by some suit in tbe United States Courts or tbe Interstate Commerce Commission. Still defendant does not point tbe way to such a remedy or show that tbe Commission or the United States Courts are in tbe habit of giving any redress in such petty matters and defendant did not move to have tbe matters transferred to tbe United States Courts or to tbe Commission. There is no showing *16that the necessary cooperage of grain cars to such a trivial amount is any part of interstate commerce. Indeed, it is a matter of local urgency which must be inet and acted upon in every case before the loading of a car, and before there is commerce of any kind.
The complaint shows it became necessary to cooper about 100 cars and on each car the amount was an average of $1.50. It was a matter of urgency and the work probably saved the company many times the sum of the expense.
Clearly the cooperage act is constitutional. The complaint does state a good cause of action. Under the statute the county court had jurisdiction of the subject of the action. Hence, the judgment should be reversed and the case remanded for a new trial on the merits.