Scott v. Jones

Opinion of the court by

McAtee, J.:

Under adequate averments in the motion for a new trial and petition in error, the case is argued in the brief of plaintiff in error upon the grounds of (1) the insufficiency of the affidavit to confer jurisdiction, and of (2) the inadequacy of the bill of particulars. Upon the first proposition, the affidavit does not expressly state in specific terms and in the very language of the statute that “the property had not been seized by virtue of an order of delivery issued'under this article.” Yet it did state, in addition to the other statutory aver-ments which are required in the affidavit of replevin, that “the property was not taken on execution by any order of the court.” And it is held by the court here that, since “an order of delivery issued under this article” is “an order of the court,” the omitted clause is adequately cov ered by the language of the plaintiff used in the replevin action, and that any “order of the court” includes “an order of delivery issued under this article,” and satisfies the demands of the statute, and is adequate to confer jurisdiction. It is further argued that the bill of particulars was inadequate to support the action, inasmuch as it contained no averment that the plaintiff was entitled to the immediate possession of the property, or that the defendant wrongfully detained it, and that these are material averments, for the absence of which the judgment will be reversed. This action was begun in a justice of the peace court. No exception was made to' the bill of particulars prior to the trial. We have held that the affidavit in replevin was adequate to confer jurisdiction, and the insufficiency of the bill of particulars will not be held to avail the defendant upon appeal, no exception having been made to it prior to the trial. The judgment of the district court is therefore affirmed.

Tarsney, J., having presided in the court below, not sitting; all of the other Justices concurring.