
    Merton W. Hall, Appellant, v. Cyrus Bassler, Respondent.
    
      Action in Justice’s Court to recover a chattel and damages for its detention—severance, hy the County Court on appeal, of the cemse of action for the chattel from, the one for damages—when a demand must he shown to maintain the latter— effect in that respect of a judgment for the possession of the chattel.
    
    An action was brought in a Justice’s Court to recover possession of a bicycle and damages for its wrongful detention after a demand had been made for its possession. The justice rendered a judgment in favor of' the plaintiff for the. possession of the bicycle and in case a delivery thereof could not be had for the value thereof, which was assessed at ten dollars.
    Upon an appeal by the plaintiff to the County Court that court affirmed the judgment so far as it awarded to the plaintiff the possession of the bicycle, or, ■ in case delivery of the bicycle could not be had, for the value thereof, assessed at ten dollars, but reversed the judgment “for errors of law and as being contrary to and against the weight of the evidence,.” so far as it failed to award to the plaintiff any damages for the wrongful detention thereof.
    The County Court directed a new trial before a justice of the peace, at a time and place named, “ to ascertain, determine and assess the damages sustained by plaintiff by reason of the defendant’s acts in wrongfully withholding the possession of ” said bicycle.
    The plaintiff having failed to appear at the time and place named, the justice rendered a judgment of nonsuit against him. The plaintiff then brought an action against the defendant in the Justice’s Court alleging in his complaint that he was the owner of the bicycle and that his demand for the possession of the same had been refused; that the defendant had wrongfully deprived him of the use and' possession of said property for forty-six days, which use was of the value of forty-six dollars, for which sum he demanded judgment.
    
      Held, that assuming that the order of the County Court,, made on the appeal, operated as a severance of the single cause of action, in which severance the defendant had acquiesced, and that the judgment of nonsuit rendered by the justice of the peace was not in itself a bar to the further action, it was incumbent upon the plaintiff, the defendant having come rightfully into possession of the bicycle, to prove a demand for the bicycle in order to recover;
    That the judgment rendered ih the first action was not an adjudication that the plaintiff had demanded the possession of the bicycle at’any particular time.
    Appeal by the plaintiff, Merton W. Hall, from a judgment.of the County Court of Fulton county in favor of , the defendant, entered in the office of the clerk of the county of Fulton on the 16th day of March, .1904* upon an order of said County Court, entered in said clerk’s office on the 16th day of March, 1904, reversing a judgment of a'justice of the peace in favor of the plaintiff, entered on the 20th day of July, 1903, with notice of an intention to bring up for review upon such appeal the said order of the County Court upon which the judgment appealed from was entered.
    The plaintiff commenced an action against the defendant before a justice of the peace to recover the possession of a bicycle and, damages for the wrongful detention of the same after demand for its possession. After a trial said justice rendered a judgment in favor of the plaintiff for the possession of- the bicycle, and in case a delivery of the bicycle could not be had, for the value thereof, which was assessed at ten dollars.
    The plaintiff appealed to the County Court and the County Court affirmed the judgment so far as it awarded to the plaintiff the possession of the bicycle, or, in case delivery of the bicycle could not be had, for the value thereof, assessed at ten dollars, but reversed the judgment “for errors of law and as being contrary to and against the weight of the evidence ” so far as it failed to award to the plaintiff any damages for the wrongful detention thereof. The judgment further provides : “ It is further ordered that a new trial of the said action be had by and before John W. Burr, Esq., a justice of the peace,” at a time and place therein named, “ to ascertain, determine and assess the damages sustained by plaintiff by reason of the defendant’s act in wrongfully withholding the possession of ” said bicycle.
    At the time and place named in said order the defendant appeared before said justice of the peace, but the plaintiff failed to appear and judgment was rendered by said justice “of non-suit against the plaintiff and in favor of the' defendant, together with the sum of thirty cents costs.” Immediately thereafter the plaintiff brought this action against the defendant in Justice’s Court, the complaint in which action alleges that the plaintiff is the owner of the bicycle, and that on the 13th day of September, 1902, he duly demanded possession of the same, which was refused, and that the defendant wrongfully deprived the plaintiff of the use and possession of said property for forty-six days, which use was of the value of forty-six dollars, and demands judgment against the defendant therefor.
    
      The defendant answered by a general denial, and as a further answer alleges that the several judgments in the prior action are a bar to this action. After a trial the justice of the peace rendered a judgment in favor of the plaintiff against the defendant for twenty-three dollars and costs. An appeal was taken from such .judgment to the County Court where the judgment was reversed, from which judgment of reversal this appeal is taken.
    
      Theodore R. Haviland, for the appellant.
    
      George H. Witherhead, for the respondent.
   Chase, J.:

The defendant contends that the facts stated in the complaint in the first action constitute a single cause of action, and that the new trial granted by the County Court was only for .the purpose of assessing the damages in that action, and that 'as the plaintiff failed to appear before the justice of the peace pursuant to the order of thei County Court, he must either excuse his default and be heard in that action, or be barred from further remedy.

The plaintiff insists that the order of the County Court on fhe appeal from the first judgment was a severance of the single cause of action in which severance the defendant has acquiesced, and that the judgment of nonsuit before the justice of the peace is not in itself a bar to &' further action. Assuming, without deciding, that the plaintiff is right ■ in his contention, it was necessary for him in this action to prove the allegations of his complaint. The record does not show that the judgment in the former action was an adjudication ■ that the plaintiff had demanded the possession of thó bicycle, at least at any particular timé. It did adjudicate that the plaintiff was entitled to the possession of the bicycle, but so far as it was an adjudication as to the detention thei’éof by the defendant it was an adjudication that the defendant had not detained the same to the plaintiff’s damage. The Justice’s Court in rendering the first judgment must have found either that the defendant had not detained the bicycle for any period of time after demand, or that his detention thereof had not damaged the plaintiff. The defendant came rightfully into the possession of the bicycle and it was necessary for the plaintiff before he could recover to show in this action that the defendant had detained the bicycle after a demand therefor.

The plaintiff for some reason that is not disclosed omitted to prove a demand for the bicycle. The judgment for damages for the detention of the bicycle is for an amount more than twice the assessed value of the bicycle detained, and it only could have been rendered on proof of the detention of the bicycle for a considerable period of time.

The evidence before the justice of the peace is not sufficient to sustain the judgment, and the judgment of the County Court reversing the judgment of the Justice’s Court should be affirmed, with costs.

Judgment unanimously affirmed, with costs.  