Page:Dakota Territory Reports.djvu/36

 plaintiff, on the 26th day of June, 1871, was the owner of fourteen oxen; that on said day, one Flick, a deputy sheriff of Yankton county, took possession of said oxen under a warrant of attachment in a suit of Bramble & Miner against this plaintiff. Flick subsequently resigned his said office and ceased to act as deputy sheriff, and, previous to the commencement of this action, turned over the oxen to this defendant, who was also a deputy sheriff of the same county.

On the 27th day of July the plaintiff commenced these proceedings—called replevin—to recover the possession of said oxen, and, thereon, took them out of the possession of the defendant.

At a special term of the court, holden on the 4th day of September, the defendant moved to set aside the affidavit of the plaintiff and the requisition thereon, which motion the court sustained and set aside all the proceedings, but with leave to the plaintiff to file an amended undertaking and affidavit within eight days.

After this, we find nothing in the record in relation to the proceedings, i. e., the affidavit, undertaking or any preliminary paper in the case. This judgment of the court concluded the proceedings and ended the case, so far as a general judgment is concerned, unless the papers were amended as they were permitted to have been done by the court. 2 U. S. Dig., 174, § 418; Foster v. Atkinson, 1 Litt., 214; 8U. S. Dig., 182, § 176; Clements v. Elliot, 11 Ala., R. 360.

But, as the case went to a hearing on the merits, without objection, so far as the record shows, we have concluded to examine its merits on another question:

The court, among other facts, found that the officer. Flick, who made the attachment, "did not in the presence of two residents of the county, or in the presence of any person, attach said property, nor did he make any appraisement of said property, nor any inventory of the same as specially required by statute; that said oxen were all the oxen that said Campbell owned or possessed; that said oxen were turned out to the defendant in this action, a deputy sheriff of