
    [No. 7248.]
    Lalonde v. Neal.
    1, Abkeal From Justice of the Peace — Jurisdiction of County Court — If the justice of the peace had no jurisdiction the cause must, upon appeal, be dismissed (Rev. Stat. sec. 3855).
    2. -Trial de Novo — But the question of the justice’s jurisdiction is not determined hy the findings of the justice, hut hy the county court, upon the evidence produced before that court.
    
      Error to Chaffee County County.- — -Hon. Joseph Newitt, Judge.
    Mr. Harry L. McGinnis, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Hill

delivered the opinion of the court:

This was a suit in replevin, brought before a justice of the peace. The judgment was for the defendant for the reason as shown by the justice’s transcript filed in the county court, that from the evidence it appeared to him, and he so found, that the value of the property replevied was in excess of $300, upon account of -which he had no jurisdiction to try the case. The plaintiff appealed to the county court. The defendant moved to strike the cause from the records for want, of jurisdiction of the county court. This motion was. sustained. The judge gave as his reason, that it was clearly made to. appear to his satisfaction from the transcript, that said justice proceeded to the trial of said cause and that the sworn evidence offered and given before him (the justice of the peace) disclosed -the fact that the property sought to be replevied was largely in excess of the value of $300; that as the justice had no jurisdiction, the county court acquired none by appeal. There was nothing filed with, the motion to1 support the contention that the county court was without jurisdiction. The only presumption to support it was the fact that the justice had so held from the evidence introduced in his court.

Section 3854, Revised Statutes, 1908, provides that all appeals before the county court shall be heard and determined in a summary way according to the justness of the case without pleadings in writing. Section 3855 following reads, “If it shall appear, however, that the justice had no jurisdiction of the subject matter of the suit, the same shall be dismissed at the cost of the plaintiff.”

It is true that if the justice had no jurisdiction, the county court acquired none by appeal; but upon appeal this is not to be determined by the findings of the justice’s court. The county court is not a court of review; the evidence taken in the justice’s court is not before the county court. Whether the justice had jurisdiction upon account.of the value of the property being in excess of $300 is one of the matters to be determined by the county court upon evidence to’ be introduced in that court. — Lee v. Ralston, 1 Colo. 5; Downing v. Florer et al., 4 Coho. 209; Behymer v. Nordloh, 12 Colo. 352.

The county court received no evidence as to the value of the property. It should have tried the case de novo, and from the evidence introduced before it, have passed upon and determined the value of the property, and if it found from the evidence that the value exceeded $300, the action should have been dismissed; otherwise it should have been disposed of upon its merits.

The judgment is reversed and the cause remanded.

Reversed.

Mr. Justice Musser and Mr. Justice Gabbert concur.  