■Opinion hy
Greene, J.N. N. Holloway recovered judgment in an action of replevin before a justice of the peace. Defendant appealed. In the district court, plaintiff moved to dismiss the appeal, on the ground that the justice had neglected to makg his return to that court, at least five days before the term, as directed by the Code,. § 2340. Motion granted.
This decision is erroneous. The appeal appears to have-been regularly taken more than ten days before the term of the district court, and it was the duty of the justice to make his return at least five days before that term, but his neglect to do so could not destroy the plaintiff’s rights under the appeal. It might justify a continuance of the cause, but it could not authorize the court to dismiss the the appeal.
The appellant had performed the requirements of the - Code in perfecting his appeal, and cannot be deprived of' that right by the laches of the justice in making his returns ■ to the district court.
The judgment of the court below, is therefore reversed,., with directions to entertain the appeal and to grant a trial de novo.
Judgment reversed.