Page:Dakota Territory Reports.djvu/387



1. PERSONAL PROPERTY: The action for the recovery of personal property, under the provisions of the Code of Civil Procedure, is an original action, and may or may not have coupled with it the provisional remedy of claim and delivery.

2. GENERAL APPEARANCE: A voluntary appearance by the defendant to the suit generally, is equivalent to personal service of the summons upon him; and alter such appearance the court acquires full jurisdiction for all purposes whatsoever.

3. —: If the proceedings under the writ for obtaining possession of the property were so irregular and defective that no jurisdiction could thereby be conferred, all questions in relation thereto become immaterial after defendant appears, answers and contests the case on its merits.

4. JUDGMENT: An appeal to the District Court, from the judgment of a justice of the peace, under the provision of a statute, requiring the trial to "proceed in all respects, in the same manner as though the action had been originally instituted therein," excludes the consideration of any alleged errors committed by the justice, on the trial, except such as relate solely to jurisdictional questions.

5. —: The object of an appeal from the judgment of a justice, prior to the passage of the Revised Codes, was to try the case on its merits, and such an appeal was not designed to perform the functions of a certiorari.

6. EVIDENCE:. To the general rule that when written evidence of a fact exists, all parol evidence is excluded, there are exceptions, such as that written acknowledgments and receipts need not be produced or their absence accounted for to admit parol evidence of the transaction which they are designed to evince.

7. —: A bill of parcels, receipted, of the sale of articles of personal property, need not be produced to prove a sale; parol evidence is competent on the ground that such paper generally amounts to nothing more than a receipt for the price.

8. —: Whenever it turns out that a writing exists with regard to a transaction, which the law regards as the best evidence, it must be produced or its absence accounted for. A bill of sale being the best evidence of title, is properly admissible in evidence.

is an action originally instituted in a Justice's court to recover possession of certain personal property, and taken to