¶1I concur in the judgment of reversal, but am unable to give my assent to some of the points decided.
¶2First. Section 4 of the herd law provides that, “If the *103owner of said stock shall refuse within forty-eight hours after having been notified in writing to pay said damages claimed, or appoint an arbitrator to represent his interest,' said animal or animals shall be sold upon execution [order of sale] as required by law, when said amount of damages' and costs shall have been filed with any justice of the peace of the county within which said damages may have been sustained.”
¶3Sec. 5. “ In case the parties interested cannot agree as to the amount of damages and costs sustained, each party may choose a man, and in case the two men chosen cannot agree, they shall choose a third man, who, after being duly sworn for the purpose herein named, the three shall proceed to assess the damages, possessing for that purpose the general power of arbitrators.”
¶4Sec. 6. “The said arbitrator or arbitrators shall make an award in writing, -winch if not paid in five days after the award has been made may be filed with any justice of the peace in the same county, and shall operate as a judgment, which judgment shall be a lien upon the stock so taken up, and execution may issue upon said stock for the collection of said damages and costs as in other cases,” etc.
¶5In this case the person taking up the stock served a notice on the owner thereof of the amount of damages claimed and the name of the person selected by him as an arbitrator in case the amount claimed was unsatisfactory. As no objection was made by the owner of the stock to the amount of the claim, nor an arbitrator chosen by him for the purpose of ascertaining the damages, the amount claimed is deemed to be satisfactory. This case therefore falls within section four of the act, which does not declare it shall have the force of a judgment. At the most it is an admission of the amount of damages sustained. This, if not paid, may be filed with a justice of the peace, who may enforce the lien. To give the justice jurisdiction the proceedings must show the taking up of the stock, a copy of the notice *104substantially in the form required by the statute, with proof of service of the same on the defendant, and that more than forty-eight hours have elapsed since the notice was served, and the defendant has failed to choose an arbitrator. These are jurisdictional facts which properly should be entered on the justice’s docket, although no doubt the jurisdictional facts may be proved even if not so entered, there being no provision of the statute requiring them to be entered on the docket. The justice, however, is to enforce the lien upon the stock by requiring the stock to be sold. This certainly requires a judgment for the amount admitted to be due, and an order to sell the property. An order of sale or special execution will then be issued on the judgment to sell the impounded stock, and after the sale be returned to the justice. But suppose the authority is derived from section 6. It will be observed that only the ordinary powers of arbitrators are conferred upon the persons selected to appraise the damages. Their finding, therefore, is merely an award. No case has been cited, nor can one be found so far as I am aware, holding that an award is a judgment. It may be conclusive upon the rights of the parties, but it is not, like a judgment, the sentence of the law. This is admitted in the majority opinion, where it is said that the “receipt and filing of the amount of damages, costs,” etc., is not a final order. I agree that it is not a final order, but it is the duty of the justice to make it so by the entry of judgment and order to sell the property, and to issue an order of sale thereon. Such procedure is clearly implied from the statute, and will protect the rights of the parties by enabling any one aggrieved by the proceedings to protect his rights, either by petition in error or appeal, which, the procedure approved by the majority of the court fails to do. If stock can be taken up and by a summary proceeding sold, and the proceeds of the sale appropriated by the person taking up the stock, and the actual owner be denied the right of review, the result might be the perpetration of gross wrongs.