
    Frederick Wagner, plaintiff in error, v. Henry Evers, defendant in error.
    Replevin: change of venue : appeal. Where in an action of replevin before a justice of the peace the defendant filed anafddavit for a change of venue, but failed to pay the costs which had accrued prior to the application for a change, whereupon it was denied and a trial had and judgment rendered from which he appealed, Held, That an appeal would lie. Cleghornv. Waterman, 16 Neb., 225.
    Error to the district court for Cass county.
    
      Beeson & Sullivan, for plaintiff in error.
    
      E. H. Wooley, for defendant in error.
   Maxwell, Ch. J.

On the 15th of October, 1885, the defendant herein brought an action of replevin before a justice of the peace to recover the possession of a cow. On the 20th of that month the plaintiff herein filed an affidavit for a change of venue. He failed, however, to pay the costs which had accrued before the change was sought, and the motion was overruled. At the time set for the trial, after waiting one hour, the defendant below (plaintiff in error) not appearing, a trial was had and judgment rendered in favor of the plaintiff below (defendant in error).

Thereafter, on Oct. 23d, 1885, defendant below filed motion as follows:

“In Justice’s court, before G. C. Cleghorn, justice of the peace of Cass county.
“Henry Evers, vs. Frederick Wagner.
“I, Frederick Wagner, defendant in the above entitled cause, move the court to set aside the judgment in this cause for the following reasons: First, because the same was rendered in my absence. And I hereby confess judgment for the costs awarded against me in said action.
Frederick Wagner,
Deft.
“It is therefore considered by me that the plaintiff recover from the defendant the sum of $12.10, his costs in said action. The judgment is conditionally set aside, and the cause set for trial on the 2d day of November, 1885, at 10- o’clock, A.M., by consent of the defendant’s counsel or attorney.”

Then follow a large number of motions and affidavits, which need not be noticed here, as all alleged errors subsequent to the judgment were waived.

On the 31st of October, 1885, Wagner filed a bond in due form with the justice for an appeal to the district court, which bond was duly approved. The transcript was then duly filed in the district court, when, on motion of the plaintiff below, Evers, the appeal was dismissed, “ for the reason that the judgment recovered by this plaintiff against the defendant .in justice’s court was rendered by default.”

There is but a single question presented, viz.: Was the appeal improperly dismissed ? This case, so far as the appearance of the defendant below is concerned, is similar to that of Cleghorn v. Waterman, 16 Neb., 226, where it was held by a majority of the court that the defendant had the right to appeal. That case must be held to be conclusive in this. The defendant had appeared in the action and was not entitled to open the judgment because it was rendered in his absence. He therefore had the right to appeal.

The judgment of the court below is reversed and the cause remanded for further proceedings.

Eeversed and remanded.

The other judges concur.  