
    GEORGE HUNTON, PLAINTIFF AND RESPONDENT, v. ISAAC PALMER, DEFENDANT AND PROSECUTOR.
    Submitted July 9, 1901
    Decided November 11, 1901.
    1. An affidavit required or authorized to be taken for any lawful purpose whatever, when taken out of the state, may, by express provision of our statute, be taken before a master of the Court of Chancery.
    2. In a suit in replevin in the district court, if the plaintiff does not require the delivery to him of the property in question, the constable to whom the writ issues siall, if so directed in writing by the plaintiff or his attorney, serve the process as in other cases, without taking or delivering the property.
    3. Where the process in a replevin suit was served upon the,defendant as in other cases, and the defendant appeared, and the case was contested at the trial and judgment was entered against the defendant awarding the possession of the property to the plaintiff, as provided by the one hundred and forty-third section of the District Court act, the defendant cannot be heard to say that the court was without jurisdiction because there was no written direction to the constable not to take the,property under the writ in the first instance.
    4. In a replevin suit the district court may allow an attorney fee to the prevailing party not to exceed $10.
    On certiorari to the District Court.
    Before Justices Van Syckel, Fort and Garretson.
    For the prosecutor, James D. Manning and F. F. Furey.
    
    For the respondent, Weller & Lichtenstein.
    
   The opinion of the court was delivered hy

Fort, J.

A master in chancery of this state has authority to take the acknowledgment and proof of deeds outside of this state for lands lying in this state where the parties reside out of this state and execute the deed out of this state. The power is expressly conferred by statute. Gen. Stat., p. 853, § 7. The revision of the Conveyancing act of 1898 contains the same power. Pamph. L., p. 679, § 23. Our statute also declares that any affidavit required or authorized to be taken for any lawful purpose whatever, when taken out of the state, may be taken before any officer who may be authorized by the laws of this state to take the acknowledgment of deeds in such state. That statute confers authority upon a master in chancery to take an affidavit out of this state for use in this state. Gen. Stat., p. 2334, § 37. The objection to the affidavit to the chattel mortgage in this case is therefore without substance.

There is no error in the record to sustain any of the other reasons assigned for reversal. The suit was one in replevin, and there was a waiver of the taking of the property under the writ, as is authorized by the District Court act. Pamph. L. 1898, p. 610, § 143. The judgment record before us expressly certifies “that the plaintiff in the above case did not require a delivery of the property set forth and described in said writ to him,” which brings the case within section 143 of the District Court act.

The only contention in this regard against the judgment is that the record does not show that the non-requirement of the delivery of the property was “directed in writing by the plaintiff or Ms attorney,” as required by the statute. That is not a matter which the defendant can raise. He cannot object to the fact that the plaintiff did not take his property under the writ. The writ was served and returned, and the case tried as other causes, and a judgment was entered awarding the possession of the property in question to the plaintiff, and an order was made, as a part of the judgment, to take the property and deliver it to the plaintiff. The defendant appeared m the action and defended the suit., The judgment was in strict conformity to the statute.

Objection is also made to the allowance of an attorney fee of $10 as not authorized by law. This is expressly provided for in replevin cases. Pamph. L. 1898, p. 636.

There is no error in the record, and the judgment of the District Court is affirmed.  