
    Bailey v. Knight and another.
    Where the record of a former judgment was excluded on the ground, as appeared from the objection taken in the court below, that it was no bar to the action: Held, that the appellee could not be heard to urge in support of the ruling that the record was not properly authenticated. (Note 14.)
    
      A justice has no authority after a case has been submitted to a jury upon the merits to withdraw it from them and dismiss the case, unless it appear to be done by consent of parties, and if he do so his judgment will be a nullity.
    Where it appeared from the record of a judgment of a justice of the peace that the partios appeared and announced themselves ready for trial; that the plaintiffs demanded a jury ; that a jury was impaneled; after which the record proceeded.
    in this ease the parties appeared by counsel, and after evidence heard on the part of the plaintiffs it appeared to the satisfaction of the court that the plaintiffs had no cause of action, it is therefore ordered that the suit be dismissed, &o.: Held, That the terms of the entiy implied that the justice withdrew the case from the jury and decided it on his view of the law upon the merits, or that, at most, it was a judgment of dismissal; and in either view it was no bar to another suit upon the same cause of action.
    
      Error from Polk. The defendants in error sued the plaintiff in error in the District Court to recover two bales of cotton which they alleged the defendant wrongfully detained from them.
    The defendant pleaded a former action and judgment thereon rendered between the same parties on the same cause of action.
    On the trial the defendant offered in evidence in support of his plea the record of a former suit before a justice of the peace between the parties to this suit, with an intimation that it would be followed by evidence that the subject-matter in controversy therein was the same as the cause of action set forth in the plaintiff’s petition; to the introduction of which the plaintiffs objected, on the ground that the judgment therein was no bar to the action; ' which objection the court sustained. It appeared from the record of the judgment offered in evidence that the parties appeared before the justice and announced themselves ready for trial, and the plaintiffs demanded a jury. A jury was accordingly impaneled and sworn. The names of the jurors were given; after which the record proceeded: “In this case the parties appeared by counsel, and, after evidence heard on the part of the plaintiffs, it appeared to the satisfaction of the court IV. J. Knight and W. J. Peace had no cause of action; that tlie property in controversy never was in possession of the vendors, at the time of the alleged sale to said plaintiffs, at any time. It is therefore ordered, adjudged, aiid decreed by the court that the same be dismissed, and that defendant jST. Bailey recover of plaintiffs all costs in this-behalf expended,” &c.
    There was a verdict and judgment for the plaintiffs.
    
      Yoakum fy iff’ Greary, for plaintiff in error.
    The question is, was the justice’s judgment on the merits? The parties appeared; evidence on part of the plaintiffs, Knight & Peace, was heard; a jury was sworn and impaneled; their verdict is not explicitly given by the record ; it is presumed to have, been included in the judgment of the court; it was a mere irregularity or omission in the recital which'cannot be inquired into. II appeared to the satisfaction of the court that Knight & Peace had no canse of aclion,” &c.; “ wherefore it was ordered, adjudged, and decreed that the same (that is, the case) bo dismissed, ami defendant have judgment for costs.” This judgment, is full and complete. The word dismissed in the enlry is objocled t.o. True, this is not a common-law expression, yet in civil-law parlance and in equity proceedings it is of the same import and efficacy as permission for tlia parly to go henee without dag. (Poitou v. Mott, II Verm. It., 1-18.) Had the. ease been dismissed without prejudice the bar would not obtain. • (14 Ves. It., 232; 2 Madd. Ch. 247.)
    In Massey v. Lemon, 5 Iredell Tí., iiñ7, when the judgment of the justice was “warrant dismissed, and judgment fertile officer for $1,” accompanied with proof, in a subsequent suit, that the merits of the suit liad been examined by the justice, it was hold a liar, unless the other party would clearly show the justice only inleuded to enter a non-suit.
    in the case before tlic court the justice’s judgment was conclusive without oral evidence, for it shows upon its face that the merits were inquired into, and upon 1,lioso merits the judgment of dismission, was rendered.
    
      J. B. Jones, for defendants in error.
    I. The proceedings before the justice were neither certified nor proved in any manner known to the law authorizing its admission, nor was there any oiler to prove it. ,
    II. But even if regularly proved it would constitute no bar to plaintiff’s action. A jury had' been impaneled, and the case submitted to them, after which, anil after testimony bad been introduced, the justice, without authority, took the case from the jury, and undertaking to decide it liimself, dismissed the suit. This act of the court, to say the least of it, is a mere nullity. After the matter had been submitted to a jury impaneled to try it, the justice-had no jurisdiction or authority to arrest it from them, and his acts in that particular were absolutely void. The statute requires the verdict to be entire. (Dig., art. 1G95.) And the parties liad a right to trial by jury, on whose verdict the judgment shall be entered. (Art. 1723.) But if the act of the justice was not void, it was at best but an irregular dismission of the suit, which would constitute no bar to this action.
    Note 14. — Cheatham ti. Riddle, post, 102. A party objecting to written evidence for any cause not going to its relevancy or competency must specially assign the grounds of his objections-in a bill of exceptions. (Huberts. Bartlett, 9 T., 97; Croft v. Rains, 10 T.,520; Tucker v. Willis, 24 T., 247; Burleson v. Hancock, 28 T., 81; Garner v. Culler, 28 T., 175.)
   Wheelbe, J.

The plaintiffs having confined their objection at the trial to-one ground, which questioned the competency of the evidence to maintain the issue, cannot be heard first to urge the objection here that the record was not properly authenticated or proved, but must he confined to the objection taken in the court below.

The only question, therefore, is as to the competency of the evidence offered.

A prior adjudication on the merits by competent authority of the same cause of action between the same parties is a bar to. a subsequent suit.

It was competent for the defendant to prove, as he proposed to do by parol evidence, that the present and former suit were for the same cause of action. (Foster v. Wells, 4 Tex. R., 101.) They appear to have been between the same parties. Was the former a decision upon the merits by competent authority? This is the only question which seems to admit of a doubt; and this, it is conceived, must be answered in the negative.

The terms of the judgment imply that tire justice decided on his view of the law upon the merits. But after the case had been submitted to a jury upon 'the merits the justice had no authority to withdraw it from them and dismiss the casé. It was the right of the plaintiffs to have a trial by jury, on whose verdict it was the duty of the justice to give judgment. (Hart. Dig., art. 1723.) But after the case had been submitted to the jury, and they had heard the evidence on behalf of the plaintiffs, the justice withdrew it from them and dismissed it. This, on the part of the justice, was a clear usurpation. It was the arbitrary exercise of an authority which he could not legally exercise. It does not matter what his reasons were, or what, view he took of the merits of the plaintiff’s case; his action was without the authority of law, or, at most, it was a judgment of dismissal. And in either view it was no bar to another suit upon tlie same cause of action.

We are of opinion that the judgment he affirmed.

Judgment affirmed.  