
    Augustus McDowell et al., Respondents, v. Newton D. Strong, Appellant.
    
      Justices’ Courts — Appeals.—Where the parties to a suit appealed from a justice of the peace appear at the trial, the court must proceed to try the case upon the merits. The judgment can only be affirmed, upon motion, when the appellant fails to prosecute his appeal.
    
      Appeal from St. Louis Law Commissioner’s Court.
    
    
      C. F. Burnes, for respondents.
    
      L. Eaton, for appellant.
   Bay, Judge,

delivered the opinion of the court.

Plaintiff obtained judgment before a justice of the peace, from which defendant appealed to the Law Commissioner’s Court of St. Louis county. On the day that the case was set for trial in the Law Commissioner’s Court the parties appeared, waived a jury, and consented that the cause should be tried by the court; whereupon plaintiff moved the court to affirm the judgment of the justice, which motion was sustained, and the judgment affirmed. The defendant filed his motions to set aside the judgment and also in arrest, which were overruled, and the case is brought here by appeal.

It was error in the court below to affirm the judgment of the justice. The court should have proceeded to hear, try, and determine the cause anew, without regarding any error, defect, or other imperfection, in the proceedings of the justice. The appellate court can only affirm the judgment when the party appealing fails to prosecute his appeal. (Martin v. White, 11 Mo. 214; Starr v. Stewart, 18 Mo. 410.)

Let the judgment be reversed and the cause remanded.

Judge Dryden concurs.  