¶1delivered the opinion of the Court.
¶2A trial of “ right of property ” before a justice of the peace, under sections 98-103 inclusive, chapter 79, B. S., is a proceeding between the claimant of the property and the plaintiff in the judgment upon which the execution issued. The case should be thus docketed, and if the property is found to belong to the claimant, judgment should be entered against the plaintiff in the execution for costs. Sec. 101, chapter 79, B. S. In the case at bar the proceeding was so docketed that the constable was made defendant and a judgment for costs rendered against him. He could only relieve himself from such judgment by prosecuting an appeal. The fact that he was not a proper party defendant could not avail to defeat his appeal. A judgment stood against him, and instead of dismissing his appeal the case should have appeals fror interposed $ reard de novo by the Circuit Court, as other .ces. The suggestion that he should have s-motion introducing the McCormick Harvesting Co. fendant, can not be entertained. If it was essential to successful prosecution of her case that such company be efendant, it was incumbent upon the defendant in error ¿o take the necessary steps to bring about the change of parties.
¶3As we have seen, the motion to dismiss the appeal was based solely upon the ground that the constable was not the proper party defendant or entitled to appeal.
¶4That he had not properly perfected his appeal by praying for it on the day of the trial, was not relied upon as a ground for dismissal, but was in legal effect conceded or waived.
¶5Therefore it can not be, for the first time, urged in this court.
¶6The judgment dismissing the appeal was erroneous and is reversed and the cause remanded.