
    Myrtle M. Heinke, Administratrix, appellee, v. Henry Helm, appellant.
    Filed February 10, 1912.
    No. 16,595.
    
      1. Replevin: Estrays: Refusal to Arbitrate One who takes up an animal as an estray under the provisions of chapter 27, Comp. St. 1911, cannot prevent the owner from recovering his property by refusing to accept a sum of money sufficient to pay for the expense incurred and the cost of keeping and caring for the animal or to submit his claim therefor to arbitration.
    2- -: -: -. In case of such refusal, the owner, after depositing a sum of money in court sufficient to cover the expense and cost of keeping and earing for the animal, may recover his property by an action in replevin.
    -Appeal from the district court for Otoe county: John B. Raper, Judge.
    
      Affirmed.
    
    
      
      A. P. Moran, for appellant.
    
      D. W. Livingston, George H. Heinhe and Pitser & Hay- ■ ward, contra.
    
   Barnes, J.

Action in replevin to recover the possession of an animal taken up by the defendant as an estray. Upon appeal to the district court for Otoe county, the case by agreement was tried tó the court, without the intervention of a jury. There was a finding a'nd judgment for the plaintiff and the defendant has appealed.

It appears that on the 18th day of-February, 1908, the defendant took up a heifer belonging to the plaintiff as an estray; that he proceeded in all respects according to the provisions of chapter 27, Comp. St. 1911, entitled “Estrays,” up to and including the publication of notice; that when the notice was published, and the plaintiff ascertained where he could find the animal-in question, which Avas during the first part of April, 1908, lie saw the defendant, and offered to pay Mm $18 to reimburse him for his expenses and the cost of keeping the animal up to that time. This offer was refused, and the defendant in turn demanded the sum of $25 before he would yield possession to the plaintiff. Thereafter plaintiff brought this action to recover his property, and at the same time deposited with the justice of «the peace, before Avhom the action was commenced, the sum of $12.50 to pay the defendant for his expenses and the cost of the care for the animal. On the trial the plaintiff had judgment, and the defendant appealed to the district court, where the plaintiff again had the judgment, from which this appeal is prosecuted,

The finding of the district court was, in substance, that the defendant had refused to submit the question of his expenses and cost of keeping and caring for the animal in question to arbitration, and had also refused to accept a reasonable sum of money from tbe plaintiff to satisfy Ms claim therefor; that, plaintiff having deposited a sufficient sum of money to satisfy such claim in court for the defendant’s use, lie was entitled to, and could maintain replevin for, the possession of his property.

The record contains sufficient competent evidence to support the judgment, and it is therefore

Affirmed.  